Appendix — Poyner v. Murray

Supreme Court brief1993

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MAP 17 °93 10:23 HNP DIVISION

Wise Serie

A698

IN THE

SUPREME COURT OF THE UNITED STATES

SYVASKY LAFAYETTE POYNER, et al.,

Petitioners

EDWARD W. MURRAY,

Director, Virginia Department of Corrections, et al.,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

For the Fourth Circuit and

Motion for Stay of Execution

RESPONDENTS’ APPENDIX

To Brief in Opposition to Petition

for Writ of Certiorari and Opposition

to Motion for Stay of Execution

TABLE OF CONTENTS

r | OQ “ ar 9 . +

December !0 1992, Injunction order of district court

December 10, 1992, order of Fourth Circuit vacating :njunct

- ~ we th we ae i= JMS

January 21, 1993, order settine tion 4

. wary ol, | 5, Order Setting Execution date

Poyner’s petition for appeal from January 21 order

March 10, 1993, order of Virginia Supreme Court refusing

petition for appeal

Pp vner < ray nr , riLAnN in f TY.

~ i SLaYy application ti) tiass ( itu!

— a 7 aa .

March 13, 1993, order of Fourth Circuit denying stay

- "“prrmr i ~ ‘ ? =

Excerpt, December 10 17%<, transcript of proceedings

in Gistrict coun

Poyner’s motion to permit entry on land

(Stamper execution

Excerpt, “Capital Punishment 199]

Letter of December &, 1992, trom Circuit Court to counse!

Letter of December 21, 1992. from Commonwealth's Attorney to

counsel)

Poyner’s motion to continue hearing to set execution date

Bassette’s § 1983 complaint dated January 8, 1992

Order dismissing Bassette’s § 1983 complaint

Poyner's aftidavit from Samuel Glasscock

Richmond Times-Dispatch article, March 16, 1993

7 °S3 10:22 HNP DIVISION P31

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SYVASKY LAFAYETTE POYNER #.12505.,

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Vv ceVew Aes sb OM

a? “Re ~AA "

t\/ « 9a 7EVUSaeN

EDWARD W. MURRAY, Director cf the

Virginia Deréaértment

Respondent.

MAGISTRATE 'S REPORT AND RECOMMENDATION

This matter was initiated by petition for 4 writ of habeas

A gy - ae. . _-_ 5 an as r 7 e

corpus under 28 U.S.C. § 2254. Petitioner is a prisoner 1 the

Virginia penal system awaiting execution of a death sentence. The

matter was referred to the undersigne United States Magistrate

pursuant to the provisions of 28 U.S.C. § 636{b)(1)(B) and (Cc

and Rule 29 of the Rules of the United States District Court ‘fo:

the Eastern District of Virginia.

ATEMENT OF THE CASE

1. Background

Petitioner was convicted on June 6, 1984, in the Circu:

Court of the City of Williamsburg and County of James City ‘fo

the capital murder of Clara Louise Paulette and the capita’

murder of Chestine Brooks. On June 7, 1984, the jury sentenced

petitioner to death for each capital murder conviction. On

July 18, 1984, the trial court affixed petitioner's sentences of

death. Petitioner is currently incarcerated in the Virginia

penal system awaiting execution of these death semtences as we--

as three other death sentences.

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o a 7 » + ~

~~ a> 4 Te e* é Cte ‘« ae .

o . _ - on, oe § a

convictions in three separate triacs. Pet: ti:sner's trial

Williamsburg was the first of the three trials. The seco!

93 10:24 HNP DIVISION P.Se

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ek ~ o ams a I e- = . - nama ms

wees “Gs sSGS scu.s.sei°S SGESECt SesMm Aindsieks, Bur rashas ‘cc

che perspective of counsel at the time in cuestison. 16 Prom

the Ceurt'’ review of the record, 1% appears that counse)] acted

competently anc adequately The Court finds no viclation og

Washinsece with resrece <¢ Grourds 8, 9, Op, 239 S25 33, 365 Oe

m = ’

17, 19, 23, 25, 25, 27, 28, 30, and 33.

Therefore, these crtunés are found tc be withcut meris

zn Groune .& petitioner alleges that counsel failed to argue’

&6t extenuating circumstances ex:sted with respect to the video-

tapec confession, which cemenstrated petitioner's unremorseful,

esponses. Petitioner offers as examples of the

extenuating circumstances “{s]Juch facts as the paternal influence

or Detective Spinner, the length ot time between arrest and

ctaping, the mental capacity of Petiticner, the staged,

arsecd format, and so forth.“ Petitioner concludes that these

Circumstances explain petitioner's lack cof remorse and matter-

of-fact responses.

The Court rejects p tioner’s arguments. The Court finds

etit

thet petitioner has not Dborne the burden of proving with particu-

Larity how counsel's performance was inadequate. Strickland v.

Washington, 466 U.S. 666 (1984). Petitioner sets forth conclu-

sory statements, failing to plead the actual prejudice that

allegedly resulted from counsel's deficiency.

The Court has viewed petitioner's videotaped confession.

Tne Court finds that petiticner was lucid and articulate at the

time of the videotaping. Petitioner spoke of the heinous murders

he hac recently committed in a methocical fashion and without any

expression of remorse whatsoever. The Court fincs that the

videotape portrayed petitioner accurately as a cold-blooded

al ol Gi ae Ame Aewiepn- ae . a

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mirderer., Corenayens>

says, counse. has ne basis ‘<a ex

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circumstantes exicte4. hus, ¢couns “aC S$ > &@!

tenuating circumstances and even if they had, it was within thet

province tc select what tactics they would use at trial:

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MAP 17 °S3 10:24 HNP DIVISION =

UNITED STATES DISTRICT COUR

FO? were r+ Orr ewer rr cro Tan ~ = «1 e+ ¥

pes o 4% = - 7 &£ée 66 w .

Richmond Division

SYVASKY L. POYNER, on behalf

of nNimself and all others

Similarly situated,

—— — +

Vv.

EDWARD W. MURRAY, Director, Virginia

Department of Correction,

ELLIS B. WRIGHT, JR., Warden,

Greensville Correctional Center,

and JOHN DOE, Executioner,

ee ee ee eee eee ee ee ee eee

Defendants.

ORDER

WHEREAS plaintiff Syvasky L. Poyner, on behalf of himself

and all others similarly situated, by counsel, filed a Complaint

against Edward W. Murray, Director of Virginia Department of

Corrections, Ellis B. Wright, Jr., Warden, Greensville

Correctional Center, and John Doe, Executioner, seeking permanent

injunctive and declaratory relief pursuant to 42 U.S.C. § 1983

with respect to the allegedly unconstitutional procedure and

means utilized by the defendants and prescribed by the law of the

Commonwealth for executing prisoners in Virginia;

AND WHEREAS plaintiff has served on defendants a request to

permit entry upon land for purposes of inspecting and videotaping

(with audio) the execution of Timothy Bunch, scheduled for

Thursday, December 10, 1992 at 11:00 p.m. at the Greensville

Correctional Center;

AND WHEREAS plaintiff? also has recuestei that the condemnec

prisoner's face be visible during the execution;

MAP 17 °SS 10:25 He DIVISION P.34

AND WHEREAS plaintiff also has requested that plaintiffs

oe eat @ >.-2661 &S ,G53i~-4§6 ° roby? Spt7

Bunch;

AND WHEREAS plaintiff has filed a motion to shorten time for

defendants to respond to plaintiff’s rm quest to permit entry upon

land for inspection and videoteping ard requiring defendants to

provide plaintiff’s representatives access to the Execution Chamber

at the Greensville Correctional Center for the purpose of

inspecting and videotaping the execution of Timothy Bunch;

BAVING CONSIDERED the arguments contained in plaintiff’s

motion and memorandum in support thereof, and the oral arguments of

counsel for the plaintiff and counsel for the defendants before

this Court;

IT IS ADJUDGED AND ORDERED that defendants are manditorily

enjoined to permit Gilbert F. Halasz, this Court’s reporter, for

the purpose of supervising Charles Bradshaw, both of whom shall be

permitted entry into the Execution Chamber of the Greensville

Correctional Center at 9:00 p.m. on Thursday, December 10, 1992,

for the purpose of inspecting and videotaping (with audio) the

execution of Timothy Bunch;

AND IT IS FURTHER ADJUDGED AND ORDERED that the execution be

performed with the condemned prisoner’s face visible during the

execution providing same is agresable to the condemned prisoner,

who shall be asked to estate his acquiescence or refusal in the

presence of the aforementioned Gilbert F. Halasz.

s- of FOMTZER PCIVDGED ABD CRETRED *tat t's ea: Chet ¢

Bradshaw, for the purpose of videotaping the execution, be placer

MAP 17 "S92 10:25 HM DIVISION p.

‘h

in a position whereby the camera will be able to observe the

person other than the condemned prisoner. Freete-ec-ceesetrte such

Following said execution, the videotape shall be placéd in the

_- 3 . —

poseession of Cilbert F. Zalasz, who shall deliver the sare to the

Court prior to any viewing of said tape.

T IS PURTUER ADIVDGED AND ORDERED that plaintiff may have one

representative present to observe any autopsy that may be performed

on the said Timothy Bunch.

Date /2-/0- F3

2.16 gm.

A TRUE COPY TESTE:

DORIS R. CASEY, CLERK OF COURT

ti eer, "= 7 a som,

MAF ET? %o2 "fo: 26 me DIvisiil-=t!

-= J cb

°. 368 mee Ie SS 10:28 He vist ;

} P.27

Filed: December 19, 1932 '

mT -

a tate ai of Bunch nad been set by the Circuit Court of Prince Willian Courty

a. ..3's - P : . a *. ‘. - «apt 8

No. 92-7229 including Poyner and his attorneys.

In addition to the aforementioned unseemly and undue haste in

IN RE ELLIS 8B. TSHT, this matter of grave public importance, the petition for a Writ of

Petitioner. Prohibition places grave dourt on whether the district ccurt had

any jurisdiction to act in the premises.

Because of the requirements of time, argument on the Petition

for Writ of Pronibition could not be hac; neither was there time to

ORDER require memoranda. ‘The papers before us, however, reveal on their

face an attempt by Poyner to interfere in the execution of Bunch,

ana the jurisdiction of the district court to interfere in Bunch's

execution at the instance of Poyner 1s very doubtful if it exists

tn the case of Poyner vy. sMurxay, Civil Action Nuaser 92-CV-

at ali.

@lS5, in the United States District Court for the Eastern District

It is accordingly ADJUDGED AND ORDERED that the order of the

of Virginia at Richmond, the @istrict judge issued an

district court referred to above in the case et Poymer y. Murray.

injunction requiring the Petitioner to permit the photographing by

Civil No. 92-CV-815, shall be, and it hereby is, stayed and held

videotape of the execution of Timothy Dale Bunch with Bunch's mask

for naught until further order of one of the judges signing this

removed, and thereafter to participate in the autopsy of the body

order or of this court.

of said Bunch following Bunch's execution, as well as to take other

Because section 1651(b) indicates definitely that either Judge

similar actions.

Widener or Judge Wilkinson or Judge Sprouse may enter this order as

The Petitioner has sought here a Writ of Prohibition under 28

an individual judge they have signed the seme as individual judges.

ll_S.cC. § 1651 questioning the jurisdiction of the said district

So far as they may ba considered as acting for the court, they

judge to have issued said order.

have signed this order ae 4 panel therect.

We note that the said order of the district court was issued

at the eleventh hour, that is to say at about 7:15 p.m. before 4

scheduled execution time of 11:00 p.n., aithovrh tre cvyecut .2”

mee 17 "9s"io:zé HE DIVisION™™” oo OF Ee P. 38

Jz Jeres M.foroyse

United States Circuit v~-dge

7 “r ’, 7 4 7 oo

J. Harvie Wilkinson, Tit

United States Circuit Judge

MAP 17 °93 10:27 HRP DIVISION Pe.

-_-o

VIRGINIA:

l were CeRcu:. J | i vk wee —! r

AND COUNTY OF JAMES CITY

aa " n&

COMMONWEALTH OF VIRGINIA

. CRIMINAL NOS. 4868-4, 4869-4

SYVASKY LAFAYETTE POYNER

ORDER

On the 2/37 day of Bowan y 1993, pursuart to Section 53 1-252 of the Code of Virginia,

came the Commonwealth, by its Amorney, and the Defendant in person and with counsel, to be heard

upon the Commonwealth's Motion to set an execution date

There is presently no stay of execution in effect. Having determined that an execution cate

should be set, this Court hereby ORDERS that me exec.tion of Syvasky Latayette Poyner s ceath

sentences be carried out on the 18th day of March, 1993, at such a ume of day as the Director o: we

Department of Corrections shal! fix.

It is further ORDERED that at least ten (10) d2vs before March 18, 1993, the Director sha!

cause a copy of this Order to be delivered to the cefendant and, if the defendant is unable to read it

cause it be explained to him, The Director sali make return thereot to the Clerk of this Court

The Clerk is directed to promptly furnish certified copies of this Order to the following persons

Edward W. Murray, Director

Virginia Department of Corrections

P.O. Box 26963

5900 Aunore Drive

Richmond, Virginia 23261

George C. Fairbanks, [V, Commonwealth's Attorney

P.O. Box 333 _

Williamsburg, Virginia 73197 Re i

CRIMINAL titic ST TOM Sox

Alexander H. Slaughter, Esquire

M-Grire Warde Bente © Rareke

Richmo Ad. Virginia 23219

Katherine B. Toone

Assistant Atlorney Genera!

Office of the Attorney General

S\ nreme Court Re 4.8.9

!0i North Eiehth Srreet

Richmond, Virginia 27219

Entered this 2/ Gay a"

f Judge

>+AL rk VLA. eer

<A Life =

George C Faffbanks, IV

Commonwealth's Attorney

Seen and objected to

om 4 ie

4 4 j -

GAAS HL ws [tastag / 4 24

Counsel for Syvasky Lai ee Poynter

._*

t- We

MAF

17°95

10:27 HNP DIVISION

IN THE SUPREME COURT OF VIRGINIA

AT RICHMOND

RECORD NO.

Ce TD DD A ee eee

SYVASKY LAFAYETTE POYNER,

Appellant,

COMMONWEALTH OF VIRGINIA,

Appellee.

PETITION FOR APPEAL

RAESTIION SCHEDULED FOR MARCH 18. i222

Alexander HE. Slaughter (VSB Mo. 05916)

Dorothy C. Young (V8B Wo. 31155)

Shannon 8. Sinclair (VSB Mo. 30588)

McGuire, Woods, Battle & Boothe

One James Center

901 Bast Cary Street

Richmond, Virginia 23219

(804) 773-1000

P. Pewell, III (VSB Mo. 18266)

MN. Johmson, III (VSB Ho. 29144)

« Melullen (VSB Mo. 31478)

& Williams

rent Plasa, Bast Tower

Bast Byrd street

Bdoehmond, Virginia 23219

(804) 788-8200

William E. Wright, Jr. (VSB Mo. 25576)

729 West 33rd street

Richmon4é, Virginia 23225

(804) 233-6646

Counsel for Appellant, Syvasky Lafayetto Poyrer

MAR 17 °S93 10:23 HNP DIVISION

TABLE OCF AUTHORITIES

II.

Vit.

VIII. REQUEST TO BE HEARD ORALLY IN PERSON

Bike

PRELIMINARY STATEMENT

ASSIGNMENT OF ERROR

QUESTION PRESENTED .

NATURE OF THE CASE AND MATERIAL PROCEEDINGS

BELOW ... «

STATEMENT OF FACTS

ARGUMENT .. .

A. Poyner Must Be Allowed An Opportunity

To Challenge Virginia's New Electric

Chair And New Procedures For Executions

B. No Virginia Court Has Ever Heard Evidence

On The Constitutionality Of Virginia's

Procedures Or Method Of Execution By

Electrocution.

S. No Federal Or State Court Has Considered

Evidence Regarding The Constitutionality Of

Electrocution Since 1890

1. Facts Of In Re Kemmler .

2. The Kemmler Decision Is No Longer

Legally Or Factually Valid.

D. Electrocution As Administered In Virginia

Violates The Prohibition Against Cruel And

Unusual Punishments Contained In Both The

United States And Virginia Constitutions.

CONCLUSION.

CERTIFICATE .

P.42

. 11

° 4

. 5

° 7

° 11

e « a0

. 21

e 23

. > 27

——

ee 30

Lae

MAP 17 ’S2 10:22 HNP DIVISION

aaa

‘fr :

Beaver v. Commonwealth,

cert. denied , 483 U.S.

Vv , 668 F.2d 52 (1st Cir.

456 U.S. 983 (1982) . -. «© © © «© © © © © © & 2

Blue Cross of Virginia vw. Commonwealth, 218 Va. 589

239 S.E.2da 94 (1977) . * * . . al * > al * . . >.

1033 (1987)

Buck v. Bell], 143 Va. 310, 319, 130 S.F. 516 (1925)

aff'd, 274 U.S. 200 (1927) . » « © © © © © we

nov er, No. 90-473-CIV-ORL-19, 1990 WL

119637 7 D. Fla. 1990) ..+s. - “a :

Bueneano v. State, 565 So.

| Burts v. Burts, 227 Va. 618,

2d 309 (Fla. 1990) .

316 S.E.2d 745 (1984)

Crim. No. 8129 (February 11, 1993) .... .

467 U.S. 1220 (1984) ...- .- 2 © =e 62 4

Estelle v. Gamble, 429 U.S. 97 (1976) ......

, 788 F.2d 1443 (11th Cir.),

denied, 475 U.S. 1133 (1986) ....+.--.

, 308 S.E.2d 806 (Ga.

| Godfrey vy. Francis 1983),

: cert, denied, 466 U.S. 945 (1984) °

Gray _y. Commonwealth, 233 Va. 313, 356 S.E.2d 157,

- cext. denied, 484 U.S. 873 (1987) ..-+-.+-.

Gregg v. Georgia, 428 U.S. 153 (1976) »~ » - «© + «=

, 131 Va. 726, 109 S.E. 582

Dito. 4 6 = 6 6 6.4 & 6 6 2 © « & 0.8

, 237 Va. 303, 377 S.E.2d 595,

cert. denied, 491 U.S. 910 (1989) ..-+-.--.

Ingraham v. Wright, 430 U.S. 651 (1977) - + +++:

Jachsor_ ve. Eiahon, {cs F.2d S71 (Eth SLY. 14'S)

232 Va. 821, 3&2 S.E.2da 342,

1981), cert. denjed,

;

Commonwealth v. White, Circuit Court for Loudoun County,

Corn vy. Zant, 708 F.2d 549 (11th Cir. 1983), cert. denied,

cert.

16,

P.43

17,

. = 9°27 12:70 wT ATUTST ide i AP

MAF 1° S23 10:29 HNP DIVTSIC OWN P44

MAP 17 ’93 10:29 HF DIVTSION Pgs

}

, 759 F.2a@ 1503 (llth Cir. 1985), aff'd, 781 :

F.2d 1482 (11th Cir. 1986) ... ic -... ete, Ritter v. Smith, 568 F. Supp. 1499 (S.D. Ala. 1983),

ais “d_2h-Felevent 287%. a eR on n_other crounds,

aehNSs7 <=. ESere, 584 N.c.2e 1092 (snd.) 203 |

113 S. Ct. 155 (1992) , ee ee (1984) a are ae eis oe we eee + 8 Ae Se 8 8 88

. , 938 F.2d 536 (5th Cir.), cert. denied, Robinson v. California, 370 U.S. 660 (1962) . «© © © © e © © « 2

U.S. _, 112 S. Ct. 8 (1991) . 2 2 2 ee ee ee see

Rumme)]_y. Estelle, 445 U.S. 263 (1980) Oe es ee

e ¥ , 136 U.S. 426 (2890 see ee ee Oe ,

In re Kemmler ) passim Shevel's, Inc. v. Southeestern Asso as coro 228 Va. 175,

Lindsey v. Smith, 820 F.24 1137 (i1th Cir. 1987), cert, 320 S.E.2a 339 (1984) .. . “- oe. & & +e BS

denied, 489 U.S. 1059 (1989) . . 2. + © 2 © we we we we ew we 16

Spinkellink v. Wainwricht, 578 F.2d 582 ane Cir. 1978),

na ex rel. F is v. sweber, 229 U.S. 459 cext. denied, 440 U.S. 976 (1979) - - ‘sa 6 60 ae

(1947) > - * . > >. * . . a. . > > . > * * . . . . >. . 16, 20

State v. Black, 815 S.W.2d 156 (Tenn. | ae a ee ee

Lowenfield v. Phelps, 817 F.2d 285 ree Cir. 1987), aff'd

484 U.S. 231 (1988) ..... ie ole ae aie 20 Stephens v. State, 580 So. 2d 11 (Ala. 1990),

cert. denied, 112 S. Ct. 176 (1991) - + + + e+ ee ees 20

onwealth, 221 Va. 436, 271 S.E.2da 123

- 4e4as 68 wee ee 6 oa 6 6 ew 6 ey He Me stockten-¥._Commomina. eh, 241 Va. 192, 402 S.E.2d 196,

___ U.S. ___, 112 S. Ct. 280

McCleskey v. Kemp, 481 U.S. 279 (1987) 2 A eat ae eel er urs. Senias ele’. se oe 6 6 & 88 8 8 8 ae 18

McGill] v, Duckworth, 726 F. Supp. 1144 (N.D. Ind. 1989), Stockton vy, Commonwealth, 227 Va. 124, 314 S.E.2d 371,

aff'd in part and rey'd in part, 944 F. 2d 344 cert. denied, 469 U.S. 873 (1984) ie Oe 6 6 % os ae 17

(7th Cir. 1991), cert. denied, 112 S. Ct. 1265 ,

eo 2 ee. <a ek ee one 6 oe 6 Sullivan v. Dugger, 721 F.2d 719 (11th Cir. 1983) .- +++ + 20

Moore v, Smith, 177 Va. 621, 15 S.E.2d 48 (1941) ....+ +. 21 Teaque vy. State, 772 S.W.2d 915 (Tenn. 1988),

cert. denied, 493 U.S. 874 (1989) -- + +++ s sees 20

People ex re). Kemmlery v. Durston, 119 N.Y. 569 (1890) s « « ae

Thomas vy. Jones, 742 FP. Supp. 598 (S.D. Ala.),

, 234 Va. 114, 360 S.E.2d 352 (1987), cert. denied, 497 U.S. 1042 (1990) »- + + + s+ + ee ees 19

cert. denied, 485 U.S. 1015 (1988) . . + +++ + + «+ + + 18

eo ’ ' Townes vy. Commonwealth, 234 Va. 307, 362 S.E.2d 650

, 805 F.2d 930 (11th Cir. 1986), cert. (1987), cert. denied, 485 U.S. 971 (1988) ... .+ + 16, 18

denied 482 U.S. 918 1987 . . . . . - . a . . . . . 20

. , ' Trop vy. Dulles, 356 U.S. 86 (1958) - ++ s+ * es se ee 8s 25

Poynex vy. Gommenwealth, 229 Va. 401, 329 S.E.2d 815, -

Poyner v. Virginia, , 217 U.S. 349 (1910) Se. ow oe a oe oe ee 25

474 U.8x 1065 (1985 Ta. 2 ae eS ae oC de eee ae ee

, No. 92-CV-815 (E.D. Va. filed Dec. 10, "U.S. 1079 (1988) . -- +++ ++ © «© = + 26, 20

1992) > 7 . . > . > el . * . . * . . . . . . . 7 7 . * . 6

, 438 F.2d 786

(4th Cir. 1970), csrt. asniss. 408 U.S. 942

(1972) . « « « ° ies SS Me

iii ,

§ 10:29 HP DIVISION

CONSTITUTIONS

v0.8. Const.

STATUTES AND MISCELLANEOUS

42 U.S.C § 1983 (1992)

Code § 53.1-223 (Repl. Vol.

, Va. Code §

53.1-233 (Repl. Vol. “

Rules of Supreme Ct.

Mar 17 "93 10:30 HNP DIVISION ep. d7

_ ae | ey 7377 (+ Pm rmon - “y o-+4 i?- hE Fr tes . a r7@°* -*« in ~-

Petition For Appeal from the order entered January 21, 1993, by

the Circuit Court of the City of Williamsburg and James City

County setting the date of Poyner's execution by electrocution.

See Exhibit 1 (attached). The court erred by denying Poyner's

motion for an evidentiary hearing to determine whether the

recently redesigned and relocated electric chair in the

Greensville Correctional Facility inflicts cruel and unusual

punishment upon prisoners.

When Poyner was originally convicted in 1984, the

Commonwealth executed prisoners in an electric chair in the State

Penitentiary in Richmond. In 1990, however, the Commonwealth

scrapped the old prison and the old electric chair, and located 4

new death chamber and redesigned electric chair in Greensville

County, Virginia. Moreover, the Commonwealth changed its method

of electrocuting prisoners in late 1991 after a botched execution

in which the prisoner did not die as quickly as the Department of

Corrections apparently expected. The Commonwealth decided for

future executions to subject prisoners automatically to a second

massive jolt of electricity. Se¢ Exhibits 2 and 3 (attached).

Based on.substantial evidence gathered by his counsel

concerning the gruesome cruelty of the new device and procedures,

Poyner sought to challenge this new method of punishment below.

Neither the Greensville electric chair nor the new procedure

recuirine the prisoner to undergo two jolts of e’ectricityv

exie*si in 19%4, co this in Poyner's fir=* eprops"... €s ne

MAR 17 '93 10:20 HNP DIVISION en

}

his constitutional claim in a Virginia state court. The lower

court erroresus*: @enie* re sab WE ; 7 oF Oi

important issue.

This appeal implicates an issue of immense public

importance: Is the Commonwealth of Virginia now executing

prisoners in a cruel and wnusual manner in violation of the

Eighth and Fourteerth Amerdmerts of the United States

Constitution and in violation of Article I, Section 9 of the

Virginia Constitution? A tribunal in the Commonwealth must

eventually conduct an evidentiary hearing on the matter.

Although numerous cases, both federal and state, have stated

the general proposition that death by electrocution is not cruel

and unusual, no court in Virginia has ever reviewed any evidence

about the physical effects of electrocution as carried out in

Virginia. No litigant has ever presented a Virginia court with a

proper record and evidence, as Poyner is prepared to do, on which

a court can base a reasoned decision on the issue. Indeed, no

court since 1890 has considered evidence about electricity's

effect on the human body, despite significant advances in medical

and scientific understanding of these phenomena. An evidentiary

hearing on the mature of electrocution in Virginia that includes

testimony of preeminent experts in the relevant fields of science

and medicine is necessary to decide the issue.

This appeal should be granted to resolve an imminent split

among the circuit courts of Virginia. The lower court's ruling

in this case conflicts with the recent ruling of another circuit

MAR 17 "93 10:31 HNP DIVISION ° 4

court. The Circuit Court for Loudoun County agreed that a

> ‘ %

Virginia *curt + piPe-s@ ep *%ia wer. te - The

Circuit Court for Loudoun County recognized that no court has

reviewed the medical and scientific evidence concerning

electrocution in over 100 years, and that no court has ever taken

evidence on Virginia's method of electrocution. In setting aside

five days to receive evidence, that court stated:

And certainly science and technology has

advanced an awful lot since 1890. And I feel

somewhere a court has got to hear the >

evidence of what the state of the art is now

on the effect of electricity on the human

body during the course of execution by

electrocution in Virginia.

Transcript, Commonwealth v. White, Circuit Court for Loudoun

County, Crim. No. 8129 (February 11, 1993), at 5 (attached as

Exhibit 12). The evidentiary hearing, however, never took place

because the Commonwealth dropped the capital murder charge the

next day and rendered the issue moot. Of course, the ruling in

Loudoun County assures that other capital murder defendants will

continue to assert this claim until this Court issues a

definitive ruling on the propriety of an evidentiary hearing.

Although Poyner has previously pursued the ordinary course

of appeals

y : at

ee, 8 A the constitutionality of the new

; e*

procedures the redesigned electric chair in a Virginia court

habeas corpus petitions, he never had the |

tpoyner's counsel had appeared as special counsel for the

defendant White for the sole purpose of presenting the

constitutional challence to Virginia's particular form of

electrocution.

MAP 17 °S3 10:21 HNP DIVTEION P.O

until the Commonwealth moved to set his execution date at the

hearin me -2> a 2. 4 - er >

court below denied Poyner's request for an evidentiary hearing on

the issue and set the execution date for March 18, 1993. Poyner

now faces a form of punishment that he contends causes

unconstitutional ly excruciating pain and terture. If this Court

does not vacate the trial court's ruling and remand the case for

a hearing, Poyner will not have had, and never will have, the

opportunity to present his evidence to a court in this

Commonwealth.

II. ASSIGNMENT OF ERROR

The court below erred in denying Poyner's motion for an

evidentiary hearing regarding the constitutionality of Virginia's

new method of electrocuting prisoners.

III. QUESTION PRESENTED

Did the court below err when it denied Poyner his day in

court to present evidence in support of his claim that the

Commonwealth's new electric chair in Greensville and new

procedures for automatically applying a second jolt of

electricity inflict unnecessary pain and torture in violation of

the United States and Virginia Constitutions?

This question relates to the sole assiconment of error.

£0

MAP 17 °93 10:32 HNP DIVTSION P.S1

IV. MATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

om ©

—

Pevmaw was erictrally eenvicie? ¢ twee caunee oe? es:

murder in 1984 in the respective circuit courts of Williamsburg,

Hampton, and Newport News. Poyner was sentenced to death for

each count. As of that time, Virginia's statutes required that

death sentences be carried out by electrocution at the State

Penitentiary in Richmond. Va. Code § 53.1-233 (Repl. Vol. 1988),

amended, Va. Code § 53.1-223 (Repl. Vol. 1991)( the amendment

rescinded the requirement that executions be performed in

Richmond). Poyner appealed the convictions and death sentences

to this Court, which affirmed each conviction and death sentence.

Poyner_v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, cert, denied

gub nom. Poyner vy. Virginia, 474 U.S. 865 (1985). Although

Poyner generally challenged the constitutionality of Virginia's

capital murder statute on direct appeal to this Court, gee Poyner

Vv. Commonwealth, 229 Va. at 406, 329 S.E.2d at 820, he did not

challenge the method of execution as it existed at that time.

Prior to 1990 (when the Department of Corrections began

using the present electric chair in Greensville), Poyner

unsuccessfully filed petitions for writs of habeas corpus im

state and. ] courts. Of course, the Gommoawemlth had not

Btwo~jolt" procedure ner- sedesigned and resired

the el air. Thus, until now, Poyner has never been able

. Ja to os « >

to challenge: in: estate court the new method by which the poe

Commonwealth now seeks to execute hin. Met uaa

7 r 4 UMass ici !

MAP 17 ’°S92 10:32 HNR . i P.e>

)

Poyner recently attempted to raise this issue in federal]

court in a Claes acticr uniter <3 U.S.C. § 19483. bee he was dtried

the opportunity to present his evidence there. Poyner v. Murray,

No. 92-CV-815 (E.D. Va. filed Dec. 10, 1992). See Complaint

attached as Exhibit 4. The Fourth Circuit thwarted Poyner's

attempt to present evidence on this issue when, on appeal of a

simple discovery order and without briefs or arguments, it

ordered the case to be dismissed. The Fourth Circuit's order of

January 19, 1993, did not even address Poyner's claim concerning

Virginia's particular method of electrocution; rather, the court

relied on numerous cases standing for the proposition that

electrocution is not per se unconstitutional. See Exhibit 5

(attached).

Poyner also sought below to present his evidence concerning

the Greensville electric chair when the Commonwealth sought a

Gate to execute Poyner with that device. On January 21, 1993,

the Circuit Court for the City of Williamsburg and James City

County held a hearing for the purpose of setting a date for

Poyner's execution.* At that hearing, counsel for Poyner moved

the court te conduct an evidentiary hearing on the issue of =e

const itutionagity of this new method of execution by ~

. Ine court denied Poyner's request and entered an

. . : # *or

2prior torthe hearing and before the federal courte, --

dismissed his case, Poyner had filed a Motion For Continuance in

the circuit court based-on the of. the itederal court

action. See Exhibit 6 (attached). This Motion For Continuance

and its exhibits set.forth the factual bases: for-Poynes's

arguments that electrocution in Virginia is eves and unusual

punishment. : Ba e Thane

electr

£2

MAR 17 °93 10:33 HNR DIVISION P.S3

)

order over Poyner's objection providing that Poyner's execution

by electrocution would be cavrle@ out

Poyner appeals from the entry of that order, and

specifically from the trial court's denial of the motion for an

evidentiary hearing regarding the constitutionality of Virginia's

particular method of executicr by electrocution. The courts of

this Commonwealth are charged with the duty to ensure that no

prisoner be subjected to cruel and unusual punishment, no matter

how unpopular his crime. The courts cannot discharge this duty

without taking evidence. In this appeal, Poyner does not

challenge the constitutionality of the death penalty itself, nor

does Poyner ask this Court today to reach the merits of his claim

because proper consideration of this claim requires evidence.

Poyner simply wants an opportunity to be heard on this issue.

Like any Virginian, he is entitled to his day in court.

V. STATEMENT OF PACTS

Poyner is subject to five death sentences. Death sentences

in the Commonwealth of Virginia are carried out by electrocution.

Va. Code § 53.1-233 (Repl. Vol. 1991). The Director of

Corrections is vested with discretion to carry out the “proper

execution of prisoners by electrocution.” Id. He must maintain

a "death chamber" with "all the necessary appliances" for

electweastiag prisoners. Jd. Exercising this discretion, the

Director ordered that the electric chair be redesigned, re-

worked, and rewired when the death chamber was moved to

Greensville in 1990. Moreover, the Directcr directe!

MAR 17 °93 18:33 HNR DIVISION P.S4

) |

procedures after the execution of Derrick Lynn Peterson on August

22, 1991. Peterson did rot J'+ accord! is t5 else when the

electricity was first applied, thereby necessitating additional

jolts of electricity to kill him. Within two weeks of Peterson's

troublesome execution, the Director ordered that prisoners in

future executions be subjected automatically to a second dose of

electricity after a waiting period. See Exhibit 2 (attached).

In addition, the Engineering staff from the Department of

Corrections and the electric chair's manufacturer “visited the

site to readjust the voltage and timing for use in executions."

Id.

In its response to discovery requests in Poyner's federal

action, the Commonwealth admitted that the electric chair in

Greensville constituted a new appliance for the execution of

prisoners. See Exhibit 7 (attached), at 1-2. The Commonwealth

objected to disclosing any information that "predates the use of

the electric chair at Greensville" as irrelevant because

“Virginia's current electric chair .. . is located at the

Greensville Correctional Center and has been in existence only

since Greensville opened in October, 1990." Id, at 2. Thus, the

Commonwealth itself considers the electric chair in Greensville a

new and different device. Because Poyner's appeal] to this Court

arose in 1984, six years before the Commonwealth began to use

this new device, he obviously could not have challenged its

constitutionality in 1984.

MAR 17 ’93 10:33 HNP DIVISION

) '

In addition to these facts, Poyner has amassed substantial

evidence from experts abet the effects %F the Cosencv' }

electric chair on the prisoners who are executed there. See

Exhibits 4, 8, 9, 10 (attached). This evidence euneneusenes that

the prisoner does not die instantly, but rather suffers a cruel

and excruciating death as his body literally cooks. The autopsy

reports of prisoners electrocuted in Greensville paint an

incredibly gruesome picture of the burning and cooking inflicted

on the human body.? Although the Commonwealth has hundreds of

photographs from these autopsies, it has fought vigorously to

keep those photographs secret and has never produced them. At an

evidentiary hearing, the fact-finder could review these reports

and photographs to observe the gory mutilation of the body during

an electrocution.

In addition, experts from the fields of neuropathology,

neurophysiology, forensic pathology, and electrical stimulation

are prepared to testify about the physiological effects of

electrocution on the person. Based on autopsy reports and other

objective evidence, these experts conclude that the electric -

chair tortures the prisoner who suffers a slow and shockingly

+i Gams S.9., Exhibits 4,8, %,+10 (attached).

Moreo tgsy pain: experts have reviewed the available -

-<© Rael. =: VelLeqoners wits

othe Circuit Court for Loudoun County ordered the

Commonwealthi @@ produce these autopsy reporte in the Mdie- case,

and Poyner's counsel have therefore inspected the reports.

However, the courtt entered a strong Protective Order. that “>. «

prohibits dissemination of the autopsy reports. ges Exhibit 11

(attached). Consequently, Poyner's counsel are not free to

include them here.

MAR 17 ’93 10:34 HNR “= P. S56

)

materials about Virginia's method of execution and are prepared

to describe the horrific and w~imaqireble sensations that +’

believe are experienced by prisoners. Particularly during the

application of multiple electrical jolts, it is likely that the

electricity stimulates several regions of the human brain, many

of which cause intense feelings of horror, pain, or dread when

activated. Widespread and simultaneous activation of many parts

of the human brain may well cause the individual to sense every

form of pain and horor that can possibly be experienced. Even if

this were not to occur and very little current actually reached

the brain, then intense pain is likely to be felt from the

extensive burns and maximal muscle contractions generated by the

electricity. Unlike other forms of execution, this form of

electrocution likely triggers responses throughout the many pain-

related regions of the brain at the same time. Other forms of

execution, such as hanging or the gas chamber, both produce brain

death without directly exciting brain regions and excite other

tissues that cause pain in a much more limited way.

Poyner has collected this evidence to show the courts what

the Commonwealth is doing to prisoners in Greensville. If the

courts are. king to consider this important issue of

constitut : , then the Directar’of Corrections will

effectivel ettered discretion to execute prisoners with

“[OMorve 1.71 as

no constituttemel] limitations. The Circuit Court for Loudoun

County recognized that Virginia courts must play = role in this

° - a ? :

. .

MAR 17 ’93 10:34 HNP DIVTSION P.S?

)

area. The circuit court below erred when it ruled to the

contrar’;.

VI. ARGUMENT

This Court should reverse the trial court's refusal to

permit the presentation of evidence regarding the

constitutionality of death by electrocution for four reasons: (i)

Poyner has never had the opportunity to have his day in court to

challenge the constitutionality of the new electric chair in

Greensville; (ii) no Virginia court has ever heard evidence

regarding the constitutionality of Virginia's procedures and

methods for execution by electrocution; (iii) no state or federal

court has heard evidence on the constitutionality of

electrocution since 1890; and (iv) the evidence will show that

electrocution as administered in Virginia violates the

prohibition against cruel and unusual punishments contained in

both the United States and Virginia Constitutions.

A. Poyner Must Be Allowed An Opportunity To Challenge

Virginia's New Electric Chair And New Procedures For

Bxecutions.

This Court has consistently and zealously guarded the right

to one's day: in court:

— SO

Thec@rial court's conduct gave rough

taeaement to Mrs. Burts’ right to due

process. The Constitution of our

Commonwealth makes crystal clear that "[njo

person shall be deprived of his life,

liberty, or property without due process of

law." Va. Const. art. I, § 11. In Moore vy.

Smith, 177 Va. 621, 626, 15 S.E.2d 48, 49

(1941), we said the following about the

mature of due process: "A day in court. en

MAR 17 °S3 10:35 HNP DIVISION P.SS

) )

opportunity to be heard, is an integral part

of due process of law, everywhere

resocr:izc?."

Burts v. Burts, 227 Va. 618, 619-20, 216 S.E.2d 745, 746 (1984).

See also Shevel's, Inc. v. Southeastern Assocs., Inc., 228 Va.

175, 183, 320 S.E.2d 339, 344 (1984) (even though appellant bore

heavy burden of proof in trying to establish affirmative defense,

he was entitled to his “day in court" and an opportunity to carry

his burden); Blue Cross of Virginia v. Commonwealth, 218 Va. 589,

598, 239 S.E.2d 94, 98 (1977) (appellant was entitled to its day

in court to challenge the constitutionality of statute, and this

Court remanded case to SCC for a determination of

constitutionality). The lower court's denial of Poyner'sc motion

for an evidentiary hearing has prevented Poyner from having his

day in court on his contentions about the Greensville electric

chair.

On February 10, only two weeks ago, the Circuit Court for

Loudoun County held that a Virginia court ought to hear evidence

on this very issue:

(L)ooking at all the Virginia cases that were

cited to me... there's just, for some

reason, some sort of a blind adherence to

~ this rule that came up from the decision of

the .U.S. Supreme Court back in 1890, that

it’s not cruel and unusual punishment for

“emecution by electrocution; and that that

decision was made without any real findings

of fact, without any real factual basis to

support it.

And it just seems to me that we are a

country, we pride ourselves in our

Constitution, both our U.S. Constitution, our

State's Constitution, Virginia's

Constitution, as being a viable working

£8

MAR 17 ’93 10:35 HNP DIVISION P.S9

) )

document that is supposed to work with

society as society's attitudes charve over

periods of tire,

And certainly science and technology has

advanced an awful lot since 1890. And I feel

somewhere a Court has got to hear the

eviderice of what the state of the art is now

on the effect of electricity on the human

body during the course of execution by

electrocution in Virginia.

Transcript, Commonwealth v. Whitc, Circuit Court for Loudoun

County, Crim. No. 8129 (February 11, 1993), at 4 (attached as

Exhibit 12). The ruling of the Circuit Court for Loudoun County

is significant because a Virginia state court has now ruled that

an evidentiary hearing is necessary and appropriate to determine

whether execution by electrocution in Virginia violates the state

and federal constitutional prohibitions on cruel and unusual

punishments. Like the defendant in White, Poyner is entitled to

present the evidence to a Virginia court.

The circuit court's ruling in Loudoun is especially

significant because, only 45 minutes after the conclusion of the

hearing in which the court explained why it felt compelled to

hear evidence about electrocution in Virginia, the Commonwealth

notified the court that "it was 98% sure” that it would be

dropping the capital murder charges (which had been pending for

over six months) against defendant White. Indeed, on the next

day, the capital murder charges were officially dropped, thereby

rendering the constitutional issue and the evidentiary hearing

moot. The Commonwealth thereby avoided defending the

MAR 17 °9S3 10:36 HNR piven

)

constitutionality of Virginia's electric chair in that

proceecing.

Especially in light of the Virginia court's decision in

Loudoun County, Poyner's previous attempt to raise this claim in

federal court is not dispositive here. The Fourth Circuit acted

without the benefit of a fully developed record, and in fact,

dismissed the case immediately upon receiving a notice of appeal

from a very limited discovery order. Within three hours of the

filing of the Commonwealth's notice of appeal to the discovery

order, before the Commonwealth had filed any papers supporting

its appeal, and before Poyner had the opportunity to respond in

any way, the Fourth Circuit panel entered a five-page order which

did not consider directly the discovery issue on appeal.

Instead, the federal appeals court took the extraordinary and

unprecedented step of issuing a mandate to the federal district

court to dismiss Poyner's lawsuit with prejudice. At the time of

this ruling, the Commonwealth's motion to dismiss was still

pending in the district court. Poyner's time to file his brief

in opposition to the motion had not yet run, oral argument had

not yet been held, and, of course, the district court had not yet

ruled on Caompemwealth's motion.

The fies as court's reasoning was fundamentally flawed

because it queued all forms of electrocutions to be per ge

constitutional in every case. But, even if electrocution is a

constitutionally permissible mode of capital punishment, not

MAR 17 °93 10:36 HNR DIVISION P.61

)

every form of electrocution is automatically constitutional.*

Stated avrother war’, if at’ farrs ef ele trom ls. were pre:

constitutional and if the Director of Corrections decided to

execute prisoners by hooking them up to car batteries and

electrocuting them over a span of hours or days, no court would

be entitled to review evidence cf this torture method. The irony

is that Poyner has alleged a far more painful torture, but he has

not been allowed his day in court to prove it.

The Circuit Court for Loudoun County was well-aware of the

Fourth Circuit's decision when it was considering whether to

conduct the evidentiary hearing, and it recognized that the

federal decision was simply not persuasive. The persuasive

effect of the federal court's order should likewise be minimal in

this Court, given the extraordinary procedural history and the

failure to develop a record before ruling.

The Circuit Court for Loudoun County was prepared to hear

Poyner's evidence. Poyner now faces the prospect of being

executed by a method that he potentially can prove to be

unconstitutional before he has a forum and a “day in court" to

present his evidence.

a This . therefore, should vacate the lower court's order

for an evidentiary hearing to resolve this

important canst itutional challenge.

*Likewise, though the death penalty has been consistently

ruled constitutional, not every method of inflictirg capital

punishment is per ge constitutional.

MAR 17 °93 10:37 HNP DIVTSION p.

)

B. Wo Virginia Court Has Ever Heard Evidence On The

Constitutionality of Virginia's Procedures Or Method of

rc LM CES fT), Se

The oft-cited decisions of both Virginia and federal courts

which have upheld the constitutionality of death by electrocution

can be categorized in one of two ways: (i) decisions that cite

no authority for upholdirg the constitutionality of

electrocution,® or (ii) decisions that rely on the United States

Supreme Court's 1890 decision in In re Fermler, 136 U.S. 436

(1890), or on other decisions which, in turn, rely on Kemnler.®

No court has considered modern medical evidence of the

physiological effects of intentional electrocution. In fact, no

> Jones v. Whitley, 938 F.2d 536, 542 (Sth Cir.), cert.

denied, U.S. __, 112 S. Ct. 8 (1991); Lindsey v. Smith, 820

F.2d 1137, 1155 (ilth Cir. 1987), cert. denied, 489 U.S. 1059

(1989); Johnson v. Kemp, 759 F.2d 1503, 1510 (llth Cir. 1985),

aff'd, 781 F.2d 1482 (1ith Cir. 1986).

* McCleskey v. Kemp, 481 U.S. 279, 299 (1987) (dictum);

, 329 U.S. 459, 463 n.4

(1947); Lowenfield v. Phelps, 817 F.2d 285, 298 (Sth Cir. 1987),

aff'd, 484 U.S. 231 (1988) (incorporating the district court's

Opinion at 671 F. Supp. 423 (E£.D. La. 1987)); .

813 F.2d 664, 678 (Sth Cir. 1987), cert. denied, 484 U.S. 1079

, 788 F.2d 1443, 1446 (lith Cir.),

(1988);

cert. > 475 U.S. 1133 (1986); , 241

Va. 192, 408r8.E.2d 196, cert. U.S. , 112 S. Ct. 280

(1991); » 237 Va. 303, 237 Va. 303, 377

S.E.2a 595, cert. , 491 U.S. 910 (1989); Townes y,

» 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied.

485 U.S. 971 (1988); Beaver vy, Commonwealth, 232 Va. 521, 352

S.E.20 342, cert. denied, 483 U.S. 1033 (1987); Stockton vy.

Commonwealth, 227 Va. 124, 314 S.E.2d 371, cert. denied, 469 U.S.

873 (1984); Martin v. Corpmonwealth, 221 Va. 436, 2713 5.2.24 123

(1980).

MAR 17 °93 10:37 HNP DIVTSION P.63

)

Virginia court has ever considered evidence in deciding the

, : s : e .

eo > 7 -- [‘-.- : - _—- -~ + -~*

Vics & we me Ne Re ee ee Oe fc." « “-- ~* .

This Court first reviewed the constitutionality of

electrocution in Hart v. Commonwealth, 131 Va. 726, 743-44, 109

S.E. 582, 587 (1921), which directly relied on the holding in

Kemmler as the foundation for its decision. Without analysis or

evidence, Hart accepted the faulty factual premises of Kemmler as

true. Jd, Nevertheless, Hart expressly recognized that the

Virginia Bill of Rights prohibits modes of punishments that

“involve torture or lingering death.” Jd. Poyner is prepared to

prove with contemporary evidence that electrocution in

Greensville does “involve torture or lingering death."

Subsequent decisions of this Court can likewise be traced

back to Kemmler as the basis for finding electrocution not cruel

and unusual. In Martin v. Commonwealth, 221 Va. 436, 439, 271

$.E.2a@ 123, 125 (1980), this Court upheld electrocution citing

Kemmler and its previous decision in Hart. Stockton v,

Commonwealth, 227 Va. 124, 134, 314 S.E.2d 371, 378 (1984),

relied on Kemmler and the decisions in Hart and Martin. In

Beaver vy. Commonwealth, 232 Va. 521, 527, 352 S.E.2da 342, 345-46

(1987), this Court relied on its decisions in Martin and

7of course, this is not a failure of the Virginia courts

because apparently no litigant has ever attempted to proffer —

evidence on this issue. This Court acts on the record before it.

Without a record demonstrating that the electric chair is

inflicting cruel and unusual punishment, this Court is

constrained to uphold the constitutionality of the punishment.

Poyner, however, was wrongfully denied the opportunity to present

evidence and create a record for this Court to review. Therein

lies the error of the circuit court below.

MAR 17 "S93 10:38 HAF DIVISION P.64 | MAR 17 °S93 10:38 HNP DIVISION P.6

) )

Stockton. In Stockton v. Commonwealth, 241 Va. 192, 215, 402

$.E.2@2 i96, 209223, sexe. do-ie@, 222: ee. 286

Court simply referred to its decision in Martin as the basis for

upholding electrocution.

This Court's decisions in Hoke vy. Commonwealth, 237 Va. 303,

306, 377 S.E.24 595, 597, cert. denied, 491 U.S. 910 (1989) and

Townes vy. Commonwealth, 234 Va. 307, 335, 362 S.E.2d 650, 6:

(1987) also descend directly from Kemmler. In Hoke, this Court

relied on a variety of decisions for upholding the Virginia Death

Penalty statute and cited for its authority its previous decision

in Gray v. Commonwealth, 233 Va. 313, 320, 356 S.E.2da 157, 160-

61, cert. denied, 484 U.S. 873 (1987). Im Gray, this Court

upheld the constitutionality of the death penalty statute in

Virginia based on previous decisions of the Court. However, the

only cited decision which related to the constitutionality of

electrocution was Stockton, 227 Va. at 134, 314 $.E.2d et 378,

which in turn simply relied on the Kemmler opinion. In Stockton,

the appellant did not present any evidence of the effects of

electrocution.

In Townes,® this Court relied on its decision in Pope.

#1214, 121-22, 360 S.B.24 352, 353. (39e7),

js0<H. 2OE5 (1988). In Pope, as in Moke, cthe

Court rel | ~sarfety of decisions for upholding the Virgisie

19903 > Fitte - o, we 6498 (2.3. Aria.

prior rulings ge Fegurding electrocution, but the opinion sxpressiY

acknowledged the possibility of overturning those precedents ir

the future. Towreg, 234 Va. at 335, 362 S.F.2d at 666.

) '

death penalty statute. However, the only two decisions which

facues the Goneti@stis..sliscy c8 Je°e® be cy r@rceatacr &

Beaver and Martin. As discussed above, Beaver relies on Martin,

and Martin directly relies on Kemmler. None of these cases

considered evidence of the effects of electrocution because the

litigants never proffered evidence. The litigarts' failure to

present this Court a complete record in those cases, however,

should not preclude Poyner from developing a record in this case

at an evidentiary hearing.

Moreover, no Virginia court has examined Virginia's new

procedures for applying multiple jolts of electricity to

prisoners. No court has reviewed evidence about Virginia's

electric chair -- either in Richmond or Greensville -- to

determine whether Virginia is unnecessarily torturing these

prisoners. Such evidence must be heard because this Court has

long said that the Virginia Bill of Rights prohibits “such bodily

punishments as involve torture and are inhumane.” Buck yv. Bell,

143 Va. 310, 319, 130 S.E. 516 (1925), aff'd, 274 U.S. 200

(1927).

Courts in other states have considered similar challenges

and taken evidence related to the functioning of a specific

electric chair, as opposed to electrocution generally. S¢¢

ay 742 F. Supp. 598 (S.D. Ala.), cert. denied, 497

U.S. 1042 (1990); Bitter vy. Smith, 568 F. Supp. 1499 (S.D. Ala.

1983), aff'd in relevant part, rev'd in part on other grounds,

726 F.2d 1505 (11th Cir.), cert. denied, 469 U.S. 869 (1984);

35°

MAR 17 °S3 10:39 HNP DIVISION

Buenoane vy. Dugger, No. 90-473-CIV-ORL-19, 1990 WL 119637 (M.D.

Pia. 29¢*. As t*@ecc 2eurts. “+ c20e°r’2e4, © MITZI NS 2B Foor. 2 ww

and its progeny do not prevent an action from proceeding where

the claim relates to the application of electricity in a specific

electric chair or in a unique manner.

c. Wo Federal Or State Court Has Considered Evidence Regarding

The Constitutionality Of Electrocution Since 1990,

Virginia is not alone in relying on the antiquated Kempler

opinion without the benefit of contemporary evidence. In

addition, federal case law continues to depend (almost as a

reflex) on Kemmler for upholding electrocution.*° Kemmler,

% Johnson v. State, 584 N.E.2d 1092 (Ind.) cert. denied, 113

S. Ct. 155 (1992); State v. Black, 815 S.W.2d 166 (Tenn. 1991);

, 580 So. 2d 11 (Ala. 1990) cert, denied, 112 Ss.

Ct. 176 (1991); Buenoano v. State, 565 So. 2d 309 (Fla. 1990);

, 772 S.W.2a 915 (Tenn. 1988) cert. denied, 493

U.S. 874 (1989); Godfrey y. Francis, 308 S.E.2d 806 (Ga. 1983),

cert. denied, 466 U.S. 945 (1984).

10 mcCleskey v. Kemp, 481 U.S. 279, 299 (1987) (dictum) ;

Rumme)_v. Estelle, 445 U.S. 263, 288 (1980) (Powell, J.,

dissenting); Ingraham y. Wright, 430 U.S. 651, 667 (1977);

, 429 U.S. 97, 102 (1976) (does not discuss

death by electrocution, but states that punishments are cruel

when they involve torture or a lingering death) ;

, 329 U.S. 459, 463 n.4 (1947);

817 F.2d 285, 298 (Sth Cir. 1987), aff'd,

484 U.S. 231 (1988) (incorporating the district court's opinion

at 671 F. Supp. 423 (E.D. La. 1987)); Wilson y. Butler, 813 F.2d

664, 678 (Sti Cir. 1987), , 484 U.S. 1079 (1988);

, 805 F.2d 930, 943 n.15 (lith Cir. 1986),

» 482 U.S. 918 (1987); Punchess v. Wainwright, 788

F.2d 1443, 1446 (1ith Cir.), cert. denied, 475 U.S. 1133 (1986);

Sullivan vy. Dugger, 721 F.2d 719, 720 (lith Cir. 1983);

Zant, 708 F.2d 549, 563 (lith Cir. 1983), cert. denied, 467 U.S.

1220 (1984); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th

Cir. 1978), cert. denied, 440 U.S. 976 (1979); Balph-v. Warden.

Maryland Penitentiary, 438 P.2d 786, 789 (4th Cir. 1970), cert.

denied, 408 U.S. 942 (1972) (dictum); Jackson v. Bishop, 404 F.2d

571, 577 (8th Cir. 1968).

356

P.66 :

—

MAR 17 ’93 10:39 HNP DIVISION P67

)

however, cannot preclude Poyner from raising his claim in a

Virginia court in 169%. The Yaw, sclertifis te mletae, ar?

society's sensibilities have evolved considerably over the last

one huni» *d years, casting serious doubt on the basic premises of

Kemmler. Nevertheless, the decision has inexplicably endured as

the basis for courts throughout the country to mechanistically

uphold electrocution, regardless of the particular method, as a

constitutional means of execution. Modern medical and scientific

evidence proves that Kemmler is no longer a viable foundation for

the proposition that death by electrocution can never be cruel

and unusual punishment. In addition to its outmoded science, the

procedural history of Kemmler makes it even more surprising that

it has endured so long without critical analysis. Because of

courts’ persistent reliance on Kemmler, it is important to review

that decision in detail.

2. Facts Of In Re Kemmler

Execution by electrocution was examined by the New York

state courts in People ex rel. Kemmler v. Durston, 119 N.Y. 569

(1890), and reviewed by the United States Supreme Court in

Kemaier before any such executions were actually conducted in the

dvagir

United Thus, any evidence presented to the New York

a - :

Court on nope of execution by electrocution was

Te. ,

necessarily speculative.

she]

In Kemnler, the New York county court had reviewed, the

evidence presented to a court~appointed referee and ruled thet it

did not overcome the presumption of the const itut ionality of «tS

3’)

MAR 17 °93 10:40 HNR DIVTSION P.68

legislation under the New York State Constitution (the Eighth

Azr.enizens no< vee ; “CMS LUETOSS AAP. CEs Le * t}< 32

because the proof did not demonstrate “beyond doubt" that death

by electrocution was cruel and unusual. Fernler, 136 U.S. at

442. The standard of proof required by the court for this first

challenge to electrocution, therefore, was an extraordinarily

high “beyond doubt" standard, which would not apply to a

contemporary challenge under the Federal or Virginia

Constitutions. The New York State Supreme Court and Court of

Appeals affirmed the ruling of the county court, but on the

grounds that the courts were not competent to second-guess the

factual findings of the legislature with respect to the

constitutionality of legislation.

The New York Supreme Court stated that "there was nothing in

the constitution of the government or in the nature of things

giving any color to the proposition that, upon a mere question of

fact involved in legislation, the judgment of the court is

superior to that of the legislature itself, nor was there any

authority for the proposition that in respect to such questions,

relating either to the manner or the matter of legislation, the

decision ostenme legislature could be reviewed by the-court.* gee@

Kemmier, meses. at 442-43 (quoting the New York Supreme.Coart).

The New YouhuSuprene Court held that the presumption thet the

legislature had ascertained the facts necessary to-detesnine

constitutionality "was conclusive upon the court," noting that it

agreed that the evidence presented did not meet the stander? -7

MAR 17 ’93 10:40 HNR DIVTSION P.69

J )

proof that would be required to overcome that presumption. See

Aad.

The New York Court of Appeals affirmed the decision of the

New York Supreme Court on similar grounds, holding that “[{i)f it

cannot be made to appear that a law is in conflict with the

constitution, by argument deduced from the language of the law

itself or from matters of which a court can take judicial notice,

then the act must stand. The testimony of an expert or other

witnesses is not admissible to show that in carrying out a law

enacted by the legislature some provision of the constitution may

possibly be violated." See id. at 443.

The United States Supreme Court affirmed the decision of the

New York Court of Appeals on the grounds that, because the New

York legislature had determined that electrocution did not

inflict cruel and unusuai punishment and the New York courts had

sustained that determination, New York had not abridged Kemmler's

privileges or immunities, nor denied him due process of law. [g.

at 449.

2. The Kemmler Decision Is Wo Longer Legally Or

Ractually valid

As stated previously, many courts have reflexively cited

Kemmler farwekerproposition that death by electrocution is not

cruel and urasual. However, scientific, medical and legal

developments in the past 100 years have seriously eroded the

precedential value of Kemmler.

MAR 17 °93 10:41 HNP se i P.70

First, courts no longer automatically defer on

sonstitctional issues 2 st2te lev slevives as rhe hee Yor> 2‘ 2

courts and United States Supreme Court deferred to the New York

legislature in Kemmler. More than twenty years ago, the Fourth

Circuit Court of Appeals vindicated the authority of courts to

review a legislature's decision generally, and specifically to

review a legislature's enactments regarding criminal punishment.

Ralph v. Warden, Maryland Penitentiary, 438 F.2d 786 (4th Cir.

1970), sexrt. denied, 408 U.S. 942 (1972). In Ralph, the State of

Maryland argued that capital punishment was a purely legislative

decision with which the judiciary should not interfere. The

Fourth Circuit rejected the State's argument: “The fact that a

Maryland statute authorizes capital punishment . . . does not

conclusively establish the punishment's constitutionality, for

the Eighth Amendment is a limitation on both legislative and

judicial action." Jd, at 788-89 (citing Bobinson vy. California,

370 U.S. 660 (1962)).

Second, to the extent that the New York courts were willing

to consider evidence on the issue, Kemmler would have been —

required to prove “beyond doubt" that death by electrocution. was

r 1 in order to obtain relief. Kemmler, 136 0.8.

at 442.- » in today's jurisprudence, courte apply @ << =

preponderam@etof the evidence standard for establishing an Eighth

Amendment violation. See Blake v. Hall, 668-%-2d 53, B@e58 (let

Cir. 1981), cert. denied, 456 U.S. 983 (1982)) Megilaim.tre oor”

cruel and

Duckworth. 726 F. Supp. 1144, 1148-49 (McD. Ind.-19"8) -eseta fm

EE EE Ew

MAR 17 °93 18:41 HNP DIVTSION P.71

| )

, 944 F. 24 344 (7th Cir. 1991), cert

denied, 112 S. Ct. 1245 1735°

Kemmler is relied upon by courts today to dismiss claims

without examining new scientific evidence demonstrating that

electrocution is an excruciatingly painful and inexact process.

In essence, courts have continued to rely on an opinion which

relies on the judgment of a single 19th century judge who imposed

a much higher standard of proof than would be imposed today. It

is essential to reexamine the effect of electrocution on the

human body, in light of scientific and medical advances, using a

contemporary standard of proof.

Finally, scientific and medical knowledge have increased

dramatically since 1890. The United States Supreme Court has

recognized that the Eighth Amendment is not a static concept but

“must draw its meaning from the evolving standards of decency

that mark the progress of a maturing society." Trop v. Dulles.

356 U.S. 86, 101 (1958). See also Ralph, 438 F.2d at 790-91.

Furthermore, it has recognized that what is cruel and unusual “is

not fastened to the obsolete." Gregg vy, Georgia, 428 U.S. 153,

171 (1976) (quoting Weems v. United States, 217 U.S. 349, 378

(2920)). asec

The amt below, by examining modern technological evidence

and applyingrteday's legal standards, was in a position to

reconsider the long-standing and obsolete assumption that

electrocution is immune from constitutional review. but the court

refused to do so. Nevertheless, the constitutionalityv of 4

: 4]

MAR 17 ’93 10:42 HNR DIVISION P.?

MAR 17 °S3 10:42 HNR DIVTSION P.72 < )

WwW

' ) |

electrocution is not, and cannot be, a closed debate given that

the first, last, anid or!’ court te -- pay ay’ deste of >

effects of electrocution did so in the 19th century. Moreover,

the Commonwealth's recent changes in its appliances and

procedures dictate at least a hearing to review the effects of

those changes. Poyner is simply trying to bring electrocution,

and the scrutiny thereof, into step with contemporary medical

science and “evolving standards of decency."

With the help of knowledgeable experts, Poyner is prepared

to prove what modern science now knows about electrocution. This

knowledge includes, for example, the excruciating pain suffered

by the inmate as he actually burns and cooks during the

electrocution process. See, e.g., Exhibits 4, 8, 9, 10. In

1890, before the first execution by electrocution, the "experts"

were unaware of this phenomenon. It was also presumed that the

inmate was instantly unconscious as the electricity was applied,

but Poyner's experts have exposed the fallacy of this assumption.

Our understanding of electricity was in its infancy in late 19th

century, and madical science has advanced exponentially over 100

years. The time has come to analyze the constitutionality of

pra ir using this modern body of ‘knowledge.

: e. decision on vhich all cases upholding

‘as a constitutionally sound means of execution

nNee2

Virginia'

electr

‘ps 73

rely. Since that decision is flawed due to the outdated factual

determinations and legal principles, all of its progeny must

fall. This Court should-vacate the circuit court's ruline and

)

remand the case so that the trial court can review evidence

against the Greersvitie <i-stris . - i = r

principles.

D. Zlectrocution As Administered In Virginia Violates The

Prohibition Against Cruel And Unusual Punishments

Contained In Both The United States And Virginia

Constitutions. = bailing

If given the opportunity at an evidentiary hearing, Poyner

is prepared to present evidence that electrocution as

administered in the Commonwealth of Virginia inflicts wanton and

unnecessary pain, in violation of the cruel and unusual

punishment clauses of the United States and Virginia

Constitutions. For instance, Poyner would prove the following:

(1) The Commonwealth attempts to walk an

arbitrary and undefined line between too

much and too little electrical current in

executing condemned persons. The

Commonwealth does not know the exact amount

of current needed to render the condemned

person instantaneously unconscious. The

Sirector, or his designee, essentially

guesses at the voltage that should be applied

to kill the condemned person without causing

the prisoner to explode. The General

Assembly has never reviewed the issue, and no

statute prescribes how electrocutions are to

be carried out in Virginia.

~ (2) Because of the Commonwealth's desire to avoid

a gruesome mess that shocks the sensibilities

oft the witnesses, it takes precautions to

prevent the witnesses from observing the

following:

(a) massive third degree burns to the head,

arms, legs, and groin;

(b) morbid drooling and vomiting;

MAR 17 ’93 10:43 HNP DIVTSION P.74 a! MaR 17 °93 10:43 HR ee P75

)

° .

(ad) convulsions; VII. CONCLUSION

@) horrific granszce- erote ey, No matter how unncrulier & terse cr ; . ’

Gilated pupils; and entitled to his day in court when he presents a serious claim of

- Og a eS ee constitutional dimensions. Poyner is not attacking his

_ tor ine enon oe ae convictions or his death sentences; he is not challenging the

—e constitutionality of the death penalty. Rather, he simply asks

(4) The Commonwealth's technology for executing

persons by administering varying numbers of

jolts of electricity externally to the head

is antiquated. This is demonstrated by a

large number of botched executions carried

out within Virginia resulting in flames and

- - : :

pee Bigs Finny wal cules’ ctndiaiie torturing prisoners in violation of our constitutional standards.

grotesque consequences.

this Court to allow him to have his day in court to present his

evidence -- never before heard in any court in this Commonweaith

-- that the electric chair in Greensville is unnecessarily

Poyner respectfully requests that this Court award him an appeal

(5) The application of electricity, as done in

Greensville, inflicts excruciating pain

because it overstimulates every neuron in the

brain's pain center simultaneously, while

cooking the remainder of the body with

intense heat. This results in unnecessary

and unimaginable torture.

to consider this issue of great public importance.

(6) Autopsy reports and photographs of executed

prisoners depict the charring of flesh in

places where the electrodes are not even

attached, thus indicating some kind of

malfunction in the electrical circuit.

The foregoing are not vague allegations, but rather delineate

specific reasons why electrocution as currently administered in

Virginia is cruel and unusual punishment. They are not . =——s

unsubstantiated because these allegations are derived from the b>

Commonwealth's own internal operating procedures, from objective a

facts, and from qualified experts.

The trial court erred in denying Poyner an evidentiary

hearing to determine whether the Commonwealth is, in fact,

infiicting pain in an unnecessary and wenton fachion.

oy Lad

— ~ SE —

MAP 17 °S93 10:45 HAP DI\'TSION P.76

VIII. BEQUEST TO BE HEARD ORALLY IN PERSOW

Povner, Ev counsei, pursuant tc Rute & 5% ’e.. ressestr

requests to state the reasons in person to the Court why this

Petition should be granted.

SYVASKY L. POYNER

Alexander H. Slaughter (VSB No. 05916)

Dorothy C. Young (VSB No. 31155)

Shannon E. Sinclair (VSB No. 30588)

McGuire, Woods, Battle & Boothe

One James Center

901 East Cary Street

Richpond, Virginia 23219

(804) 775-1000

Lewis F. Powell, III (VSB No. 18266)

Harry M. Johnson, III (VSB No. 29144)

Sean P. McMullen (VSB No. 31478)

Hunton & Williams

Riverfront Plaza, East Tower

951 East Byrd Street

Richmwjond, Virginia 23219

(804) 788-8200

Willfam H. Wright, Jr. (VSB No. 25576)

719 West 33rd Street

Richmond, Virginia 23225

(804) 233-6666

Pp" Se.

MAP 17 °93 10:44 He sm a P.77

VIRGINIA:

e : lta Jesprrowne Fo cecd of Arye nen 40d ae 44 hohe Fe Aon 4 Muckler y ae: bus

Cady of Rachanemd on Wwednescay l4a 10th ober y f Maren, i993.

Syvasky Lafayette Pruyner, Aspe lar

against Record No. 930301

Circuit Court No. F-4865-4

Commonwealth of Virginza, Appellee.

From the Circuit Court of the City of wWilliamssurg

and County of James City

Upon consideration of the record, t

and the argument in support of the granting o

has determined that there is no merit in appellant's claim that the

court below erred in refusing to conduct an evidentiary hearin

regarding the constitutionality of Virginia's present metnod cf

executing prisoners. Accordingly, the Court refuses the petiticn.

\ Copy,

Teste:

David B. Beach, Clerk

By: ei a Sw...

Deputy Clerk

: MAR 17 °93 10:44 HR ew p79

NO. 93-6052

».* >

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SYVASKY LAFAYETTE POYNER

Vv.

EDWARD 8. MURRAY, Director,

Virginia Department of Corrections,

ELLIS B. WRIGHT, JR., Warden,

Greensville Correctional Center,

and JOHN DOE, Executioner

CON a: is, 1993)

APPLICATION FOR STAY OF EXECUTION

Alexander H. Slaughter (VSB No. 05916)

Dorothy cc. Young (VSB No. 31155)

Snannon E. Sinclair (VSB No. 30588)

McGuire, Woods, Battle & Boothe

One James Center

$01 East Cary Street

Richmond, Virginia 23219

(804) 775-1000

Lewis F. Powell, III (VSB No. 18266)

Harry M. Johnsen, EII (VSB No. 29144)

Sean P. McMullen (VSB No. 31478)

Hunton & Williams

Riverfront Plaza, East Tower

951 East Byrd Street

Richmwjond, Virginia 23219

(804) 788-8200

William H. Wright, Jr. (VSB Wo. 25576)

719 Weat Jird Street

Richmond, Virginia 23225

(804) 233-6646

Counsel for Syvasky Lafayette Poyner

)

Syvasky Lafayette Poyner, by counsel, and pursuant to Rule 3

of the Federal Pules of Anrellstts Prste ‘ure j.eie

appiication for a stay of his imminent execution, scheduled for

March 18, 1993. Poyner requests that this Court stay his

execution until such time as the United States Supreme Court nas

had the opportunity to decize on his Petition for writ of

Certiorari to the United States Court of Appeals for the

Circuit, filed on March 11, 1993.' Application to the United

States District Court for relief in this matter is not

practicable because of the previous disposition of this case by

this Court, which, upon receiving a Notice of Appeal of a

discovery order, issued an Order and Mandate requiring the

District Court to dismiss the entire lawsuit with prejudice.

Poyner is applying to this Court for relief because Rule 23 of

the Rules of the United States Supreme Court requires him to

exhaust his remedies below before the Supreme Court will

entertain a similar request.

I. Procedural) Bistory

In 1984, Poyner was convicted of five capital murders in the

Circuit Courts of Williamsburg and James City County, Hampton,

and Newport News. He was given five death sentences. The

Virginia Supreme Court affirmed Poyner’s convictions and

sentences in a consolidated appeal on April 26, 1985. (ner *

Commonwealth, 229 Va. 401, 329 S.E.2d 815 (1985). The United

States Supreme Court denied his petition for certiorari on

‘Exhibit 1.

MAP 17 °S3 10:45 HNP DIVTSION

~ )

October 7, 1985. Poyner vy. Virginia, 474 U.S. 865 (1985) (2

cases: an} 474 0.3. 823 ~ 25) 2 ¢ar

Poyner filed petitions for a writ of habeas corpus in the

three state Circuit courts, and the petitions were dismissed in

May, 1987. On April 29, 1988, Poyner’s petitions for appeal of

the habeas decisions were refused by the Virginia Supreme Court.

(Record Nos. 870882, 270990, 870959). Poyner’s petition for a

writ of certiorari was denied by the United States Supreme Court

on October 3, 1988. Poyrer v. Bair, 488 U.S. 871 (1988).

In early 1989, Poyner simultaneously filed three petitions

for a writ of habeas corpus, in essence a single consolidated

petition, in the United States District Court, Eastern District

of Virginia. (C.A. NOS. 89=203-N, 89-204-N, 89-205-N). The

petitions were filed in the Richmond Division on January 12,

1989, and transferred to the Norfolk Division on March 15, 1989.

On October 11/ 1989, the Magistrate Judge recommended that the

petitions be dismissed and, on December 21, 1990, the District

Court dismissed the petitions. The dismissals were affirmed by

the United States Court of Appeals for the Fourth Circuit on May

8, 1992. Poyner v. Murray, 964 F.2d 1404 (4th Cir. 1992). On

November 2, 1992, the United States Supreme Court denied

certiorari review. Poyner vy. Murray, 113 S.Ct. 419 (1992).

On December 10, 1992, pursuant to 42 U.S.C. § 1983, Poyner

filed the lawsuit at issue here, a class action challeng.ag the

constitutionality of the Virginia electric chair, in the United

States District Court, Lastern District of Virginia (92 C.V.

450

P.80

MAR 17 °9D 10:45 1#f DIVTTION me.

)

g15).? On January 19, 1993, in response to a bare Notice of

Apreal relating to a discovery crder. the “rlted fes-0a5 ter ‘

Appeals for the Fourth Circuit, gua sponte, issued an Order arc

Mandate requiring the District Court to dismiss Poyner’s § 1933

action.’ The District Court did so on January 20, 1993.‘ On

February 2, 1993, Poyner submitted a Petition for Rehearing

Suggestion for Rehearing In Banc, ard Petition for Recall of

Mandate.’ This Court denied that Petition on Pebruary 17, 19923.°

Meanwhile, on January 21, 1993, the Circuit Court for the

City of Williamsburg and James City County scheduled Poyner’s

execution for March 18, 19923.’ Poyner petitioned the Virginia

Supreme Court for an appeal. That Petition was refused on March

10, 1993. (Record No. 930301).

On March 11, 1993, Poyner filed his Petition for Writ of

Certiorari to the United States Court of Appeals for the Fourth

Circuit, seeking review of the January 19, 1983 Order and Mandate

requiring the District Court to dismiss Poyner’s § 1983 lawsuit.

"Exhibit 2.

‘Exhibits 3 and 4.

‘Exhibit 5.

‘Exhibit 6.

‘Exhibit 7.

"Exhibit 8.

51]

Mee 17 °S3 10:4e He we Oe a ae ee

II. Fasts

SCevrer “as amassest 2 Sod Sf evidence croving that it

highly probab.e that a person subjected to intentional

electrocution in the Virginia electric chair is neither

instantaneously Kiiled nor rendered instantaneously “unconscious”

by the electric current arpliea to his bedy. Poyner’s experts

have explained in affidavits, and if given the opportunity will

testify, that the subject of intentional electrocution in

Virginia most likely suffers excruciating pain for an

indeterminate period of time as he waits to expire from

asphyxiation or ventricular fibrillation.'

As set forth in the Petition for Certiorari, the Fourth

Circuit thwarted Poyner’s attempt to present evidence on this

issue when, on appeal of a simple discovery order and without the

benefit of any briefs or arguments, it ordered the case to be

dismissed. The Fourth Circuit’s Order did not even address

Poyner’s claim concerning Virginia’s particular method of

electrocution; rather, the Court relied on numerous cases

standing for the proposition that electrocution is not per se

unconstitutional. The Fourth Circuit’s Order also did not

‘The Affidavits of Drs. Hillman, Devinsky, Ilgren, and Price

are attached hereto as Exhibits 9, 10, 11, and 12. The Court

will note that the affidavits of Drs. Ilgren and Price have been

redacted. The redacted material relates to autopsy reports which

are, for the time being, subject to a Protective Order preventing

their use in any proceeding outside of the criminal proceeding

Commonwealth vy, Curtis Eugene White, Circuit Court of Loudoun

County, Crim. No. 8129. Poyner hopes and expects that the

Protective Order will be lifted or modified early next week so

that he may present all of the evidence currently available to

him.

52.

MAR 17 '93 10:46 HNP DIVTSION pa

)

consider directly the issue that was raised in the Notice of

nopet) © took the «+ :esacrd.rary - -

Court to dismiss Poyner’s lawsuit forthwith with prejudice. The

Fourth Circuit’s Mandate issued that sane evening. Poyner’s

subsequent Petition for Rehearing, Suggestion for Rehearing In

Banc, and Petition for Recall of the Mandate were den ed.

III. Basis for Granting the Stay

Petitioner Syvasky Lafayette Poyner is scheduled to be

executed in Virginia’s electric chair at 11:00 p.m. on Thursday,

March 18, 1993. Poyner has gathered proof that the method of

execution which he is scheduled to undergo wil

unconstitutionally deprive him of his right to be free of cruel

and unusual punishment, and a stay of execution pending

disposition of his Petition for Certiorari is therefore

necessary. Without a stay, he will soon be executed in a manner

that is not simply unnecessarily painful, but in fact a form of

torture.

While this case does not arise as a habeas corpus petition,

but as an action pursuant to 42 U.S.C. § 1983, Poyner will assume

for the purpose of this Application that the requirement that a

habeas petitioner present “substantial grounds upon which relief

might be granted" applies. Relo vy. Stokes, ___-«U-S- ___, 210

S.Ct. 1880, 1881 (1990); Barefoot vy, Esteoris, 462 U.S. 889, 895

(1983). As set forth in the Petition of Certiorari, Poyner has

established gross procedural error on the part of the Fourth

ar i=s _—-—-*

Circuit in treating a mere discovery order as am -") "cs.

MAR 17 °S3 10:47 HNR on x P.84

)

subject to review pursuant to 28 U.S.C. § 1292(a)(1), and in

eraneforsting it 2rto nm enportunity te cacse the case to ke

dismissed without a hearing. Moreover, the underlying claims

made in Poyner’s § 1983 Complaint are amply supported by

substantial evidence, as shown by the affidavits attached as

Exhibite hereto. Furthermore, as discussed just below, Poyner

has engaced in no actions that should be construed as abuse of

the writ. Cf, Barefoot vy. Estelle, 463 U.S. at 895.

The Commonwealth will attempt to argue that Poyner is

precluded by Gomez v.§ U.S, Dist. Court for the Northern District

of California, U.S. , 112 S.Ct. 1652 (1992) and McClesky

v._Zant, U.S. , 111 S.Ct. 1454 (1991) from raising this

claim at this time. The circumstances of this case, however,

differ in several salient respects from the activities that were

construed as abuse of the writ in Gomez and McClesky.

While in Gomez the § 1983 plaintiff had filed his Complaint

a mere four days before his scheduled execution, here, Poyner

filed his Complaint on December 10, 1992, some six weeks before

his execution date was set at a hearing held on January 21, 1993.

Therefore, the concern expressed by the Supreme Court in Gomez

with respect to the "obvious attempt at manipulation” is

inapplicable. See Gomez, 112 S.Ct. at 1653.

Moreover, with respect to the applicability of Meclesky

through the Gomez case, Poyner’s failure to raise this claim in

his single previous opportunity to seek federal habeas corpua

relief can be readily explained. His petitions were filed in

MAR 17 °93 10:47 HNP DIVTSION P.ss

early 1969. At that time, the electric chair was still in

Piermcrd, the setched «xecut.or3s sf Wiizert us Ls 2°

17, 1990) and Derick Lynn Peterson (August 22, 1991) had mot yet

occurred, the Greensville electric chair with its revamped wiring

did not yet exist, and the Commonwealth had not yet instituted

its policy of electrocutirg prisoners with two jolts because of

the likelihood that the first jolt would be insufficient ts kill

the condemned.® Thus, the “cause” prong of MeCjlesky, 111 S.Ct.

at 1470, is satisfied. The facts set forth in support of

Poyner’s Petition for a Writ of Certiorari and in the affidavits

that accompany this Application establisn the prejudice that

MeClesky also requires, and thus establish Poyner’s right to 4

hearing on the issue he has raised. Id.

Iv. Conclusjon

For the reasons set forth above, Poyner respectfully

requests that this Court grant his motion for a stay of execution

pending the decision of the United States Supreme Court on his

Petition for Writ of Certiorari.

Dated: March 12, 1993

RESPECTFULLY SUBMITTED,

Alexander H. Slaughter (VSB No. 05916)

Dorothy C. Young (VSB No. 31155)

Shannon E. Sinclair (VSB No. 30588)

McGuire, Woods, Battle & Boothe

One James Center

Richmond, Virginia 23219

(804) 775-1000

*Exhibit 13.

- FF . a , wrerTr

MAR 17 '@2 10:47 HNE DIVTCTON MAP 17 °93 10:46 HR [I'’SI0N >

P. 86 q

Lewis F. Powell, IiI (VSB No. 18266) NO. 93-6052

Harry M. Johnson, III (VSB No. 29144) a

seam ©. MoMullien ‘'YSGR No. 21472°

: inne

<a vag er . .

FUNTSCN & Wiese GRE +. yy

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, Virginia

- (804) 788-8200

UNITED STATES COURT OF APPEALS

23219 FOR THE FOURTH CIRCUIT

William H. Wright, Jr. (VSB No. 25576) SYYAS¥Y LAFAYETTE POYNER

719 West 33rd Street

Richmond, Virginia 23225 Vv.

(804) 233-6646

EDWARD B. MURRAY, Director,

Virginia Department of Corrections,

ELLIS B. WRIGHT, JR., Warden,

Greensville Correcticnal Center,

and JOHN DOE, Executioner

Counsel for Syvasky Lafayette Poyner

CERTIFICATE OF SERVICE

I nereby certify that on the 12th day of March, 1993, two

- copies of this Application for Stay of Execution in the above-

entitled case were delivered by hand to Katherine 8. Toone,

Esquire, and Richard B. Smith, Esquire, Assistant Attorneys

General, Attorney General’s Office, Supreme Court Building, 101

North Eighth Street, Richmond, Virginia 23219.

Leute 4 Slpegstt

DOROTHY C. YOUNG

SHANNON E. SINCLAIR

McGuire, Woods, Battle & Boothe

One James Center

Richmond, Virginia 23219

804-775-4346

Tounsel for Syvasky Lafayette Poyner

; 5]

We i e¢ 735 4 ek in on a -~ «~- . .s

Mee Is SS 11:18AM 4 »iPCUIT COURT OF RPPEALS P.e

PILED: March 13, 1992

2 .

ae eae eee woG . ~* ~~

“POR THE POURTH CIRCUIT

white

No. 93-6052

SYVi SKY LAFAYETTE PCYXNEF,

Petitioner,

versus

FOW? 2D B. MURRAY, Director, Virginia

Dep: rtment of Corrections, ELLIS B. WRIGHT,

CR., Warden, Greensville Correctional Center,

@énd JOHN DOE, Executioner,

Respondente.

CRDER

We have considered the application for a Btay of execution

filed by Syvasky Lafayette Poyner on March 12, 1993 and are of

Opinion the same is without merit. —

Substantially all of the facts on which Poyner now relies have

bee, public knowledge and easily available to him at least since

the dissenting opinion of Justice Brennan in Glass vy. Louisiana,

471 U.S. 1080 (April 29, 1985), which in turn relied upon some

piib“ic factual sources dating back into the 1970s and earlier. ‘The

sub’ ect now at hand could and should have been raised by Poyner in

his State and federal habeas petitions filed resnectivet an

Dec: mer 4, 1925 an2d is 2262, but was r

- | mm. ~~ - 9 » + =

A (2&2 ee ~-— - +

“+

—

Section 1963 case was filed on December 10, 1992. We detect no

MAP AT 493 10:45 ME DIVISION.

vv - ion and - e. 3

ye © ee cre. Larmcus” COURT OF «Ff x SS > .

+ # . 3 * @

States District Court for tre Northern District of =ali?arnia, 6C

U.S.L.W. 3733 (1992) (per curiam).

While the complaints about the electric cheir at Greensville

could have heen raics:2 ct any tize since 2251 wien “he cPrtcr was

installed and were not, they are unproven and even if true are

based cn no factual prerise ich would show that the method of

Poyner's execution woild involve “cruelty irherert in the method of

pun:shment, not the necessary suffering involved in any method

employed to extingui:h life humanely." Lowisiar 4 ex rel. Francis

vy. Pesveber, 3259 U.S 455, 464 (1947).

It is accordi:igly ADJUDGED and ORDEREL trat the said

application for a stay of execution shall be, ard the same hereby

is, denied.

With the concurrences of Judge Wilkinson and Judge Sprouse.

States Circui udge

For the Court

~ »

P. 30 Pp oi

a _ $6

— —_—— =

of which have been given, I thin t -

ae al . — . —- beam eres , gi sii, P« hi stim 4. ,.€e€4as%

UNITED STATES IST! I T COU .

a ee ‘ “——_-A * A _= orn *% **

: a : :

J out what 18S requested

Tr ~~, , ~ > = “ + - e

. ‘ iso Lia? -~2> a 2 : a a ~ « -

2 "It is adjudge and ordered tnat defendants are

& mancator é e<¢ > av ~ he + 4 7 ~ =

> ald --

>Ourt’ revccrter ‘ pose Of Super r ~nare

-ase no

8 Bradshaw, both cof whom hall be permitted entry .nts tne

~wTirr ss _ e .

4 > - _ ~

“INIA, etc et ail. 3 execution cnamper of tr reensviiie Corr : na. enter at

etfencants . . “ r 4 — = , - fee ,

- ] -) r or mhursca, ecember .v or 2 300 tnerearver as

they ma arrive, 92 for the purpose of nse e J ana

le vVadeotaeping with audio the execution of Timothy sBuncr

13 | Further adjuageda and rdered that tt! executic be pertormed

: " £ ee , .

SRABLE ROBERT R. MERHIGE, JR

tec States Distr t juage ——— . —_— ie . -

a 7 — a, 14 with condemned prissoner ace visible dur ; ft executic

providing same is agreeable to the condemneca prisoner, wns

Snaii be asxec Oo state Als acquiescence r@.usa. et -

> - - > —_ Ld -+ _

L presence of tne alor entioned GilidSert | Halas2z .c is

’

December 10 1992 ' , ™ . , : aon ea

: 1s further adjudged and ordered that said cnaries Sradshaw tor

RIcCAmONG, Virginia

. ; . x ~~ . > at “or -~

19 the purpose of videotaping the execution be p.acec | 3

;

~ » . 7 - 5 . . o- amet’

U position whereby the camera Wouid be able TO Observe vs

TN PFW CHAMBER

WSIS OS Gee »7 Cn demn a me ner 4 are

i+ conc e > = \ ic > >

> ~ a ~~ > * ‘ ~ ~ + ,

23 There sna. be > videotaping or any pers Oth

a "rT ce? Qr ;

Wer Wu Frank Halas2 ; RI F an . . n ad . a cr ‘

~~ than ct ft con emnec + +-

MATAS? § HA! 3s“

-Our® Ressrter ,

P J. BOX 223

-, . a ‘rT? »-

r Licamond, vA -~~-—+ < to yn ne mr, = -

~ - oe WE LE ’ 4 ~- «= :

(E04) 41-%5.« WY

a — . — _— -_

ft)

—J

MP 17 93 10:59 He DIVO TON

same

neen

ce?

’

order

at is

snow

;

—

Fol

lowing said execution, videotape shall be placed

_errm oF --r rowers or ore

Richmond Div 1silon

the Court prior to the viewing of said tape.

rther adjudged and ordered that the piaintift may

SYVASKY L. POYNER, on behalf

— nestive creeent to observe any autorsy, not of himself and al! others

similarly situated,

pat i” but observe any auterps that 2 de

Plantffs,

ed on the said Timothy Buncn

| ¥ Civil Action

I would ask counsel for the Commonwealth, you Nave No.92-CV-815

EDWARD B. MURRAY, Director, Virginia}

ry cooperative, to notilty the appropriate autnorities Department of Corrections.

entry of this order and see to it that a copy

MR .

tne

contemplatea if they got more of the body it will

ive to Mr. Halasz to present when he arrives.

follows that the tape will be seaied, Kept unaer

ELLIS B. WRIGHT, Warden,

Greensvi!'e Correctiona) Center,

and JOHN DOE, Executioner,

mis * - - LJ a —- 7 - - -

aS GuLCK. aS Ppocss.vie. We will heve an attested

es.

Defendants.

REQUEST TO PERMIT ENTRY

UPON LAND FOR VIDEOTAPING AND INSPECTION

her oracer of the Court.

‘t Know as there is anything else we can do.

Plainuff Syvasky L. Poyner, on behalf of himself anc al! others simuiiriy situaice, 0»

SLAUGHTER: May I address the Court: . , . ,

counsel, pursuant to Rule 34(a)(2) of the Federal Rules of Civil Procedure, requests an orce

directing defendants

SLAUGHTER: Your Honor limited, as I heard the

l. To permit those persons designated by this Court, on receipt of consent to the

videotaping to the face of Mr. Bunch. I believe

same from Charles S. Stamper, entry into the execution chamber of Greensville Correcniona

Center one hour before the execution of Charles S. Stamper for the purpose Of viceolapin

with audio, Mr. Stamper’s execuuon

COURT: Well, I only did what I thought you said.

AIIGHT ER ry

a bed -~* eo 7, ¥ r

: mat <: y iy

SLAUGHTER l appreciate tnat, Your Honor, but :

ED HE DTV TON

2 Ta nermit slant ff." exres neurenatho'cr’' %. ED. Itzren evry irto a:

medica! examiner's office for the purpose of inspecnng ard onserving ary aufogss 'o be

performed on Charies S. Stamper and to permit Dr. ligren to pertorm the routine and

ordinary autopsy procedures on the brain descnhbed in Dr. Peren’s attached affidavit.

Respectfully submitted,

SYVASKY L. POYNER,

on behalf of himself

and al] others similarly situated

by DO AT CY — &

Counsel! a —_\

Cc) Cc J

Alexander H. Slaughte:

Virgimia State Bar No. U59!6

Dorothy C. Young

Virginia State Bar No. 31155

Shannon E. Sinclar

Virgimia State Bar No. 30588

McGUIRE, WOODS, BATTLE & BOOTHE

One James Center

Richmond, Virginia 23219

(804) 775-1000

Lewis F. Powell

Virginia State Bar No. 18266

Harry M. Johnson, II

Virginia State Bar No. 29144

Sean P. McMullen

Virginia State Bar No. 31478

HUNTON & WILLIAMS

Ruverfront Plaza - East Tower

95) Byrd Street

Richmond, Virgizia 23219

MAP 17 °93 10:51 HR DIV**ION

}

as ' Diced Crrp .*

(804) 788-8200

CERTIFICATE OF SERVICE

I hereby certify that | caused a cory of the forezoing request to De delivered Dy hand

and telefaxed on January nd lsy3, to:

John H. McLees, Esq

Assistant Attorney (eneral

Office of the Attorney General

101 North Eighth Street

Richmond, Virginia 23219

Counsel to Defendants.

S (\

= ' TA —

~ +g

<> - a = > P “A

Db tether \) eon co t vo aA eer vw

- o.+ 6? o ’ + ie G ; 9

follows

L. My mame is £.B. lilgren; M.D. I am a neuropathologist

arc am currentiv a “erker of the Faculty of @ieiegy ard

Agricultural Scierces ard Subfaculty cf Bicchemisery, (mi versicy

of Oxford. I received ry M.D. from Hahnemann Medical University

in 1974. I was board certified in Anatomic Pathology by the

American College of Pathology in 1976. In 1982, I was certified

mn Neurcpatnology by the Royal College of Pathology in the United

Kingdon

3 I Rave been asked by the plaintiffs in Bovner vy.

Murray, ef 4)., to consult with them on the effects of

electricity on the human body.

3. I have reviewed the autopsy reports of Wilbert Lee

Evans anc Derrick L. Peterson prepared by the Medical Examiner

for the Commonweaith of Virginia. The reports do not provide

completé information on the effects of electricity on the bodies

OL people who have been executed in Virginia's electric chair.

4. To analyze of the effects of electricity on the human

body, it would be beneficial to observe the autopsy of the next

inmate executed in Virginia's electric chair.

$s. Determining the condition of the human brain following

an execution in Virginia's electric chair will provide

information regarding the effects of electrocution on the human

MAF

17 °S> 12:51 HR DIVISION

’

)

“

)

‘+

b |

rule out abnormalities in tne cellular

)

Microscopic examination cf the brain sissue is recqui

out important cellular changes in the brain tissue.

Fe She f@l.Svirs FPOUCLNSG porcterarfsm enezninsticn .-

bracn in necessary to determine the condition cf the train

tissue:

a. The skull cap is removed in the usual fashion and the

brain is gently lifted from its bony vault after the brain

stem is transected with a scalpel at the base of the skull.

b. The brain is lowered whole and immersed in a vat

containing no less than six times its volume weignt cf 103%

firmalin.

C. A string is passed beneath the vessels of the circle of

Willis to suspend the brain, upside-down, within the vat.

da. The brain is thus fixed for no less than four weeks

whereupon it is examined in the routine way.

e. Examination includes weighing the whole brain and tnen

obtaining the individual weights and dimensions of the

cerebrum, brain stem and cerebellum.

tf. All three of the above are then carefully sectioned in

the coronial plane at the following intervals by means of a

hand-held knife: cerebrum, one-half inch; brainstem, one-

fourth to one-eighth inch; cerebellum, one-fourth inch.

g- The “coronal” slices are examined for gross

abnormalities and then the following standard blocks

inches x 2 inches) are taken bilaterally: A, . » jj Py 3 gi

Basal Ganglia; Thalamus; Hypothalamus; Pituitary ‘Gland;

Cerebellum, vermis and hemispheres; midbrain, pons, medulla

(upper, middle and lower).

h. The above sections are then embedded in paraffin wax

using routine methods, sectioned by microtome at 5-10

microns, and stained.

l. The sections t

liqnt micrescore ft9

gray and wnite matte

he mersRoloa:is::

produced are then exarines weiter a

apPe sy eo Ac

6’?

MAP 17 °S> 10:52 He ait r.S MHF 17? °S2 10: Me TV TON —_

U.S. Department of Justice a =

Office of Justice Program. (2am

Bureau Of Justice Statistics

8. The r@thod ef roet-mortenm examination of the brain set Bulletin

forth abeve is routine nevrorath*logizal examination te detect

celoyis® srregulercccesc in the Bratn.

sy J nishmen

A /}i,

A Pye 44 f , } & —

—l SS I LARGE De Z By Lawrence A Greenteic Status of tne death penalty, December 31, 1991

f? < — Se BJS Staisnciar

NumOer of Eni sarers UNSctons

Eight States executed 14 prisoners during st = “aS i Se Gaer WTO 3 eT A A''y

1O¢ ; As - 3A —_ os aa

eamsannte 16h ane ate on --. viens c —_ {Coane

, ; UN ‘ ~/ >i ! : iS Y6a Vv fTyr 2 - Tua 7

Subscriped and svorrn tetore ne tenis / fT cay of canvary inat the U.S. Supreme Coun einen ies ee is 7 ane

Geain penalty, Those execuled during Ou S.ane GUNS = “2S

1993. 1991 had spent an average of 9 years and weneeast ~eigtanities 7 Mou

8 mormhs awaling execUion, about | year a - - ~ a ‘ 4 ae ~

ne 9 morane longer On average tnan tne Tow : Gracrp a aanenens

<y Persons execulecd during 1990 >» Of ew Naw ¥ rx

5393S ic ,aT? LD SOe

Owing 1991, 265 prisoners were received . «oe Frade sia

My coszaseion expires ’ ~ —_ — by State prison systems and 1 prisons mon

NOTARAL BEM. Niered the Federal prison system under a a ne ty

4O86PH A REALE Notary Pubes SEmMAaNCE Of Gen from the courts During ~

P Lowe Menon Tup. Morigcmmery Co. ) the year, 106 persons had thew death “

fa : Mr cote, Somes Sec v2 rome | SEM*@Nce vacated, 2 nad their sentence a ee ee

: ‘ COMMULED, 1 [eCeived 4 CONditiona! pardor ve Nes

. o:= : by the governor, and 7 died while under ¢ | rh. niin titan Mie _ :

4 Per death sentence At yearend, 34 States anc | re eye ra ty Snmctahecinep me a ne a ae oe

aa <6" the Federal prison sysiem reported atcta «| mesh nr nena tngntin 9 ria Foe Coan oe

Z Ae. 4 ae Zs of 2,482 prisoners unde: sentence of death | aes 194 “| - : “a “ser a 7 .

on — — rs - - a 5.8% increase over the Number hela at = ce SS Ine F ederai Governmert nas MASMZED SSA ON INdiwiduais whk

ieee the end of 1990. Ail prisoners under a 5O provided data on persons under ave DEEN SANieNced to dean since

sentence of death on December 31, 1991 SSMESNSS GF COEM. GNPENGNG i rece 973 are available to the public tnroug

A had been convicted of murder. The median | YO"? '0 Include criminal history initorma Ne BJS-sponsorec National Arcnive of

hon ana whetner tne condemned nad ~romur “a Nat

SPY WN SINCe Ine death sentence was imposed Vhimina! JUuSuce aia

for the 2.482 prisoners was 5 years @ Status with the criminal »usice sy ster

S | at Ine time of tne capital offense Data would iik@ to thank the Many persons

Hs About 7 out of 10 offenders under sentence | 2/® Sollectad prospectively on each case Stale and Fadera! cofections agencies

wou (lain ot death for wnom criminal history data after emering a deatn-semence stat . Hogs > na sI~reVS JeErera

OP PLL were availabie nad & prix felony satiation SO nat femMmovais of 4 Gealn sentence ae axe thus @ pape Surette

about 1 in 12 nad a prior homicide SRECUTIONS, ENS GING! CNANGSS iN Stat

cormwiction. About 2 in 5 concemned ale sySiematically followed The series

ine ume of the capital offense. Hat otinese | ‘°° We!” PENalty ang major cases Owect

were on parole, the rest were in prison, on me

escape trom ofison, On probation, or hav x : "

cnarges pending agaist them. Neatly 15% The mac ty, 1 464 /§9 OF ‘ — _ > one "

of those sentenced to deain between 1668 senience of dean wore white G8? (39 Fy femaia an '

and 1991 had received 2 oF, more death gry Were Diack: 23 (0 9%) were Amencar =a needs hn

sermences it ndian, ang 13 (0 3%) were Asian mm, par % Nedian age al which tney Na ox

8 (164) accounted for 7 4% oftncse sentenced to daatn was 29 ve

semonce Trniny-tour (1 4°

MAP 17 92 10:54 HP DIVTCION et

MP 17 "SS 10:52 HP CIV? TON F.O

EE LT TM .

SS — oe eee

Oregon — Ciaried the role of allernate CONVICTION and sentence, idaho, indiana, highest appellate coun. {1 ether the Prt >

jurors Guring the seniencing phase of a and Montana require review of the COMmviclion or the sentence is vacated, the 4“ te. an "

capta!l tual # a ivror wno was preset Guna sentence only. in idaho review of the case may be remanded t0 the tr'a! cous far ’ a.

me oO. " Chase Suratie to seve -e set Coe “9 40 o& thet ercngiad -+ 4- a: Cat) SAR OMe tine CF far anne ow.

- P. ¢ ° - o.s , + > - - ‘a

wasting the “issues” relevar’ to ne appro. c* the conwiction. Typictily the review 1s rese™tencing, the death semence may be 6 ee . % a Kf . Emaaces City County

priateness of the death penahy instivied undertaken regardiess of the defendants — remposed Vonatown Va 29630 ee eeaeraee

an automa ic Siay Ci execution the defen- wishes and is conducted by the State's ee MING anG Gudtn County

dant seeks a review from tne US Supreme , eee Contan 4A COMMONWEALTH OF VI R G | N | A ate”

Court, and enumerated new procedures to Table 2. Method of execution, by State, 1991 | Wiiiemseuae va 23187 nT satel o MiGQ. ESE 4 COniety

5e€ used On remand Guring @ resentencing - : (804) 220-4711 NINTS JUSICI AL TT noe nent county

proteed n3 rf preiud.cal error i¢ determure 4 wre wth Csectocvror 92 OS rown F “mere y¥i JOnN Me ves an “ee ‘ a

fh Pave “0° ren re ‘ | . PO Bx caz "+ ory pape? TY

a re Ankarce Alabams3 Arrona Montans* ia rn” Graeidstan Va 201 Nover ber 19, 19392 seacgs au

Cugoan™ Ankansa** Caine New marosne*? Udy" (060) 59-1336 ao’ ; 7

Utan — Cnanges tne term “first-secree Cuawere Connactcus Casas” Vv as tengton"

Murder 1 “agoraveted murder’ ana | gare” Pleida Maryland

enanges the term “second-ceagree Murcer” | tunes Georja Missssipp** ’ .

to “murder” and, in tne section describing | Wovisians In ane Missoun*

m ‘ Wy Miss So ° Kens Norn Carolina’ . ,

mrs Se oe actegnet A - - oor Mr. George C. Fairbar.ks, !\ Mr. Harry M. Johnson, Il

f iNGS, Ch sso ‘ seas

“muroer’ - ston cide * - Momana® io Commonwealth's Attorney Hunton and Williams

| Soe ‘ a P.O. Box 333 Riverfront Plaza, East Tower

New Hampstre* owe ssa i 92)R7 ,

Virginia — Adced murders resuhing trom ng sonny Williamsburg, Virginia 23187 951 E. Byrd Street Ns

toreible socomy or etlem pied forcidie New Maxico Richmond, Virginia 23219

sodomy to tne fisting of capita! murder North Caroline’ Mr. Alexander H. Slau ghter

circumstances a. Oklahoma Ms. Catherine N. Currin

—. . | McGuire, Woods, Battle & Boothe

Method of execution eer ee One James Center

=“ - ss fom ° Richmond, Virginia 23219

Al yearend 1991 jetnal imection (22 States) ’ ® ‘

Var

and electrocution (12 Siates) were Ine most Wash ‘

commen methods of execution autnsrized | Want ’ Re: Commonwealth v. Sy vasky Lafayette Poyner

(table 2) Six States authorized lethal gas. , Circuit Court for the City of Williamsburg and County of James City

twee Staies, hanging, anc two Siaies. a Note Federal executions afe to be carted out “Cokwado authorizes tathal gas tor Mose whose crimes File No. 4868-A

fwing squed. Nine States authorwed more accorawg to the metncc of Ine Slate inwhicn ey awe occurred before ten pm oot 9 fon those

red whdee Crimes Oclurred On Of afer! 7/1 ,

Than one Meinod — ieinai IM@CTION and an Authorizes 2 methods of «ecuion “Now Mamnpsnire authorites hanging only F lena Dea r Ms ‘ Currin and Gentlemen:

ahernetve mahes generally st the neatae GADAEeS tay ce a Nose whose SSS eas ,

‘ Capa NSE OCCUled _ fot Woee whose 6s Po author nyecton for those ° * . . .

Sectian of ine ear ramen praoner or otfense occ uried belure Ta! Gale Me condemned COMmicled afer 7/1/84: execuiion of those convicted I have received commu nications from Mr. Fairbanks and Ms. Toone , Assistant

baS00 ON the date of sentencing brmoner May select lethal myection oF electrocution ones to Chat cate & toe casind Gut wih Red Gas. Attorney General, indicating that they have no objection if I continue in the case for

Sune Seiten tee ens en cease the purpose of fixing the execution date; however, I have had no response from Ms.

to fetnal injection anticipating tnat 1 may be | Tabie 3. Minimum age authorized for capital punisnment, yearend 1991 Currin and Messrs. Slaughter and Johnson. Therefore, in order to prevent

Tound unconstiutional Eacn of the otner continued delay, | am recusing myself, and Judge John M. Folkes, of the Ninth

A tw & 4 2 s 2 . . . a . - ‘ 9 -™

four methods, previously challenged on age lesion ie Age 18 None specified Judicial Circuit, will sit in the matter. I request that each of you advise Judge

eighth amendment grounds as crue! and Alabama (16) | Celfernia artzone Folkes of your earliest available date for the hearing.

unusual punishment, has been found to be AMANOES (14) Comado Oeawae

constautional. The method of execution for nay ar a — Yours very truly,

Federal offenders 1S that of the State in Kentucky (16) Meryiand esennene / a

whch the execution takes piace Louse@ns(16) Neu asta Pennsyivans / Fs

Missour (16 New Mexico Washington

CntennEtS CRD perenne Onw G. Duane Hollowa

New Hamosnwe (17 Oreqan , y

Of the 36 States with capita! punishment Monn Carobne (17) Temes see Judge

Stelules at yearend 1991, 34 provided tor So oa | Federay system

review of all Cea@h sentences regardiess Texas (17) GDH: mlw

of tne defendant's wishes. Arkansas nad Utah (14) cc: LS

c: The Honorable John M. Folkes

re ific prov Veeginia (16 “ne

SPOENS SFOAEONS TH? GUENS COviOw, Eee ote | ihe Honorable Rando!ph T. West

and Oro (ORD Sect.on 2329 G5. provides

to review by 'he Cour of Annezis art ene

Supreme Cou “vnen appeal The Fade-z

Oeain panaity crocedures 49 not orovide tre

automatic review ater e sentence of death

iS mposed. While most of ine 34 States

BUINON260 an aulomatic review of both tne

| ete Angas at ine ere cfihe « agial danse were

(Ndrcated by the Of ices Of If Slate anprne,s cenerai

“See AiKaneas COO AN S27 31H! 1, (Rem 19%))

“Seo Conn Gen Sut 5346-46419) (1)

“MiunumuM age Oehned Dy Statute & 15, bul oflective

age « 16 hater wm On eerpretetwm 41118 Supreme

Cat eOsrns by Me Cfste Money cosas (6

“Age requ ted & 17 uniens the murderet was

Ncw ated tur Murder whet & Subse went Ne er

SC ulied, Ne age inen may be 14

“age 10. Dut only after 8 ransie: hemring to Dy & |

The Honorable Nelson T. Overton

The Honorable Helene S. Ward, Clerk

Mr. Milton Brown, Deputy Attorney General .

Ms. Katherine B. Toone, Assistant Attorney Genera! -

’

Me IP °S3 10°54 HMR DIV ETON ps

J +

Nene’fos ri

#340 "Ut gp

weet See JUOGES RETIRED

JUOGES

sous COMMONWEALTH or VIRGINIA S288,

YORKTOWN VA 226% WILLIAMSBURG VA 23185

904) 096-0073 NINTH JUDICIAL CIRCUIT RUSSELL M CARNEAL

WILLIAM PERSON JP Covars — pea aren agaletm

WILLIAMSB6LARG Va 7518? G.Ovci sree COunNTy MiOGLESE® COUKTY BOA) 2294 see

(804, 429-4715 Jamés Cite County NEw Ken” COuntTY JOHN E Denarn.?

a = Rony eno Guéen County Y¥Cha County PY Oxe

on FOLMES RinG Water Counter City OF POULOSON Se @uenaren VA "te!

Cc * 20. Cutw Gr Lira a ra

GLOUCESTER. vA 2368) tetas (004) 689-279)

(Ba, 665-1358

becember 38, 1992

Mr. George C. Fairbanks, IV Mr. Harry M. Johnson, III

Commonwealth's Attorney Hunton and Williems

P. O. Box 333 Riverfront Plaza, East Tower

Williamsburg, VA 23187 951 E. Byrd Street

Richmond, VA 23219 °

Mr. Alexander H. Slaughter RECEIVES

Ms. Catherine N. Currin

McGuire, Woods, Battle & Boothe p res

One James Center Cle or

Richmond, VA 23219 ® :

NN aT eee

Re: Commonwealth v. Syvasky Lafayette Poyner - File No. 4868-A

Circiut Court for the City of Williamsburg and James City

County

Dear Ms. Currin and Gentlemen:

Following Judge Holloway's letter to you Of November 19, :992, in

reference to the above captioned case, I expected to be provided

with your available dates. No communication has been forthcoming.

I suggest that you contact my secretary, Linda J. Mason, (804) 693-

1358, by December 21, 1992, with your available dates for a nearing

in Williamsburg for the purpose of fixing the date of executior.

If the Court does not recieve your dates by December el, 1992, it

will be necessary for the Court to proceed sua sponte, 1.e., you

will be notified of the hearing dated selected by the Court.

MAP 17 °93 10:55 ME DIVTSION

h’ rc ' 1 - 4 « CF. +

Mr. Harry M. Johnson, III

Mr. Alexander H. Slaughter

Ms. Catherine N. Currin

Page Two

December 8, 1992

Would you kindly attend to this matter fort‘with. Thark you very

much.

Folkes, Judge

IMF: lm

CC: The Honorable Randolph T. West

The Honorable Nelson T. Overton

The Honorable Helene S. Ward, Clerk

Mr. Milton Brown, Deputy Attorney General

Ms. Katherine B. Toone, Assistant Attorney General.

Mr. Richard 8. Smith, Assistant Attorney General

0 nen

Mm 1” °SS 10:55 we SIV!’ IN Pid MAP 17 °SS 10:55 HR Div’-*ON a

'WEALTH OF YJ

cGo* MMON aia wie vi IRGINt, VIRGINIA:

mmoenea * 4

paTwick f KELLE’

Aw! Commun ealir Atom

aceaCle& Mic

“14 Wehsmnstauta \ tgmoa 281m" AND JAMES CIT“ COUNTY

ras @ trues Joi WINS -_--_ = — —_ EE — eee

At Gammsonueal!® Ain mne, COMMONWEALTH OF VIRGINIA :

oO NYMA*S ‘ane fy te 4% r sy .

Pm. No oa FEC ah tes yore ys RECEIVED ‘ .

OFC 21 1992

SYVASKY L. POYNER :

December 21, 1992 :

OERUTK ATEOREYGEERS i eee ee eH eK ,

Mr. Alexander H. Slaughter MOTION FOR CONTINUANCE

Ms. . Currin

oe maga ow hy not fe & Boothe Syvasky Lafayette Poyner, by counsel, respectfully

hme + ar enese moves this Court to continue the date scheduled for a hearing to

set his e i ate.

Mr. Harry M. Johnson, III 38 eusewisen ¢

va coc Bw gg fase In support of this motion counsel states:

;

951 E. Byrd Street a. This Court has scheduled a hearing on January 21,

Richmond, Virginia 23219

1993 to set Mr. Poyner's execution date.

RE: Commonwealth v. Syvasky Lafayette Poyner

File No. 4868-A Circuit Court for the 2. On December 10, 1992, Mr. Poyner, on behalf of

City of Williamsburg and James City County

himself and all others similarly situated, filed a Complaint in

Dear Ms. Currin and Gentlemen;

the United States District Court for the Eastern District of

Following Judge Folkes’ letter to you of December 8, 1992, and

your response of December 16, 1992 coupled with a transmittal of

your available dates, Judge Folkes has selected the date of January Virginia Department of Corrections, Ellis B. Wright, Jr., Warden,

21, 1993 at 11:00 a.m. for the purpose of setting an execution date

in the above referenced matter in the Circuit Court of the City of

Williamsburg and County of James City, Virginia. A transportation

order has been prepared providing for Mr. Poyner’s presence on the 42 U.S.C. § 1983 with respecte tc the unconetituticrs: ercceture

Virginia, Richmond Division, against Edward W. Murray, Director,

Greensville Correctional Center, and John Doe, Executioner,

seeking permanent injunctive and declaratory relief pursuant to

above referenced trial date. Thank you for your cooperation in and means utilized py the defendants and prescribed by the law of

these matters.

the Commonwealth of Virginia for executing prisoners in Virginia.

Very truly yours,

Leedae CF curbayin cr a

George C. Fairbanks, IV.

Commonwealth Attorney

GCFIV/epm er "57

See Corrliaint, Civil Action No. 92-CV-815, Exh. A.

O:S6 HE DIVT TON P.¢

~—

tat

3. Mr. Poyner's § 1983 lawsuit centers on an issue of

a - «A . = a -_-

en ane

— —

Commonwealth of Yirginia is executing prisoners in a cruel and

unusual manrer in violation cf the Eighth Amendmert to the United

States Constitution. As the Attorney General's Office itself has

noted in a Motion fcr Er-liarcenent <£ Tire to resperd to the

sues of substartial public irterest.”

' |

“

Complaint, it “raises

Motion for Enlargement of Time, Exh. B, at 4 2. The federal

District Court has certified the acticn as a class action, and

has designated Mr. Poyner the class representative. Final

adjudication on the merits of Mr. Poyner's federal claim will

have a direct impact on the subject of the hearing currently

scheduled in this Court for January 21, 1993.

4. Mr. Poyner and the plaintiff class are represented

in the § 1983 action by Hunton & Williams and McGuire, Woods,

Battle & Boothe, which are committed to devoting the necessary

resources for the proper adjudication of the issues raised in the

Complaint.

Ss. Mr. Poyner intends to prove that the factual

premises relied upon by earlier courts to uphold execution by

‘electrocution as constitutional have been discredited by modern

science. It is his contention that currently available medical

and scientific evidence will demonstrate that “(e)xecution by

electrocution results in the wanton and unnecessary infliction of

pain,” Complaint, Exh. A, at 4 15, and that the Commonwealth has

deliberately sanitized the execution process to cover up the

-2-

MAP 17 °S3 16:56 HH DIV" TON e.7

“painful nature of electrocution, the antiquated technology

aeeitea’ ehe rrini Be" Pee see: °

machinery, the failure to use personnel qualified by education or

training to carry off the executions, the number of botched

executions and the certainty of pain." Complaint, Exh. A, at

9 46.

6. Mr. Poyner's civil lawsuit is not intended to

interrupt actions taken by the Commonwealth pursuant to its

legitimate duty to carry out lawful orders. Nor is his federal

Claim a dilatory attempt to postpone indefinitely nis execution.

Indeed, Mr. Poyner has requested expedited discovery in his

District Court action and has souehe expedited review of the

related proceedings that are pending before the Fourth Circuit.

See letter from Alexander H. Slaughter to Assistant Attorney

General John H. McLees, dated January 7, 1993, Exh. c;?

Plaintiff's Motion For Expedited Discovery, Civil Action No.

92-CV-815, Exh. D (to be filed today); Appellee's Motion for

Expedited Briefing Schedule, No. 92-7228, Exh. E. The Attorney

General's Office has declined to agree to the expediting of the

appellate proceedings as proposed by Mr. Poyner, and is apparent-

ly making no effort to speed up the federal proceedings despite

the immediacy of Mr. Poyner's execution scheduling hearing and

the impending execution of a class member, Mickey Wayne Davidson,

icounsel is, as of this writing, awaiting the Attorney

General's reply to its proposed expedited discovery schedule in

the underlying case pending in the District Court.

-3-

MAP 17 °SD 10:87 MNe NrvrTcTON P.s MAR 17 °93 10:57 HP DIV’SION P.9

litigation or completion of clemency investigetions.

which has been scheduled for February 3, 1993. See Appellants’ Y g See

Affidavits of FKathi«-“~ Deh-e 2-4 0

Fourt? Cirsvit Doeksae!- - te + -e-+e2 = - ee @# : ‘eee _

— Exhs. H and I. At the time cf his nearing, Mr. Coleman had

Assistant Attorney Gener21 John H. McLees, dated January 6, 1993, J n ha

| ending a successive habeas COrpus petition that the c t

Exh. G. The urgency of the situation has been heightened by | P 9 PB e cour

. believed presented serious issues. In setting the i

Governor Wilder's decision this past weekend to deny clemency to P 9 execution

date, then, the ccur+ 2iiowee sufficsie-

Charlies S. Stamper, and t2 set an execution date o* January 29, rF TASCLIAT ILL and

unhurried consideration of Mr. Coleman's petition. The reacon-

1993 for him.

8 Mr. Poyner requests a continuance of the January for deferral advanced in ara accepted by the court in wr.

: Coleman's case also argue for allowing Mr. y! Nplete

21st hearing before this Court to preserve judicial resources and - Wang Poyner to complete his

, . ending litigation.

to permit adequate preparation for the pending federal trial. P 9 g

, 10. The Attorney General has ref rred to th :

Mr. Poyner is utilizing all available means to expedite his Y err ° e grave

litigation in the federal court. The setting of an execution public importance of the § 1583 action, and both sides obviously

, Contempla t if i 1

date that might interfere with the prosecution of that lawsuit emplate that significant labor will precede any hearing on

the merits of that case. Mr. Poyn

would result in costly litigation that could only detract from . = yner has already initiated the

the District Court's consideration of the important constitu- steps necessary to secure expeditious handling of the matter.

t l ti to the legitimacy of Virginia's method of These facts should inform this Court's exercise of its discretion

ional question as to

in deciding whether to continue the January -2l1st nearing and, if

execution. ,

: . ame the Court declines to continue that hearin , then in setting an

9. This Court has discretion as to the timing of the g g

execution date.

hearing to set an execution date. Moreover, the Court need not

accept whatever execution date the Commonwealth's Attorney may WHEREFORE, Mr. Poyner respectfully requests that this

suggest. Instead, the Court has discretion to determine what Court enter an order continuing the hearing to determine mr.

date is appropriate In just the past year, the Circuit Courts Poyner's execution date indefinitely until mr. Poyner's lawsuit

a . ,

of Buchanan and Henrico Counties have exercised that discretion in the United States District Court For the Eastern District of

in the cases of Roger Coleman and Herbert Bassette to refuse the Virginia, Richmond Division, has been adjudicated. In the

dates offered by the Commonwealth in favor of dates that would alternative, if this Court Should decide not to continue the

ate

9 Y ° Ss cr fy’ "

allow for mature and deliberate consideration of pendina hearing set for January 21, 1993, Mr. Poyner resne lv

4 -S-

NR 14

MeP i? °S> 185° HNP DIVe ron P.10

requests that this Court set an execution date Sufficiently far

trial on tne werits with regard to the -m™portant constitutional

questions raised in his federal lawsuit.

Respectfully submitted,

SYVASKY L. POYNER

aes, > ; oN

By ween ay yt as -— a

Of Lounsel /

a “Wile cael

Alexander H. Slaughter

Virginia State Bar No.: 05916

Dorothy C. Young

Virginia State Bar No.: 31155

Shannon E. Sinclair

Virginia State Bar No.: 305388

MCGUIRE, WOODS, BATTLE & BOOTHE

One James Center

901 East Cary Street

Richmond, Virginia 23218

(804) 775-1000

Lewis F. Powell, III

Virginia State Bar No.: 18266

Harry M. Johnson, III

Virginia State Bar No.: 29144

Sean P. McMullen

Virginia State Bar No.: 31478

HUNTON & WILLIAMS

Riverfront Plaza - East Tower

951 E. Byrd Street

Richmond, Virginia 23219

(804) 788-8200

ATTORNEYS FOR THE PLAINTIFF

THC) COURT

RICHMOND, VA

UN:

MAR 17

’93 10:58 HNP DIV*’~*ON P11

| ! JAN ~ 8 jQq0

UNTTED STATES Sr57T..Ct ae

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CIVIL ACTION NO. 2 “122./1 {

COMMONWEALTH OF VIRGINIA,

EDWARD W. MURRAY, Director,

Virginia Department of Correcuons,

D.R. LAWSON, Acting Warden, Greenville

Correcuonal Center,

MARY SUE TERRY, Attorney General

of Virginia, and

JOHN DOE, Execuuoner,

Defendants.

PETITION FOR DECLARATORY RELIEF, AND

Herbert R. Bassette, Jr. ("Bassette”), by counsel, for his bill of complaint for

declaratory relief and a temporary and permanent injunction against Edward W. Murray.

Director of Virginia Department of Corrections ("Murray"), D.R. Lawson, Acung Warden

Greenville Correctional Center ("Lawson"), Mary Sue Terry, Attorney General of Virginia

("Terry") and John Doe, Executioner ("Doe") states as follows:

JURISDICTION

(1) This is an action, pursuant to 42 U.S.C. § 1983, to redress the imminent

’ ake « 2: @ -

of 3 were: se <

deprivation, under color of a !aw of the Commonwealth of Vireinis

Bassette by the eighth and fourteenth amendments to the Constituuon of ths United States.

(2) Jumsdiction is conferred on this Court by 28 U.S.C. § 1343.

: 8 |

MAR 17 °93 10:58 HNP DI''*" "ON P.ic

(3) Plainuff, Bassette, at a!i times relevant to this suit, has been a resident of

Virginia and a ciuzen of the United States.

(4) Atal dimes relevant {3 this suit, Cofentan: Mureay hes beer che direcese °° :!

Virginia Deparrment of Corrections. He has acted and will act 'n such casatity 27 the agent,

‘

servant, and employee of the defendant Commonwealth of Virginia in 2!1 actions he has

taken and wil! take in deprivation of Bassette’s constitutional mghrs. He is sued individually

and in his official capacity.

(5S) At all umes relevant to this suit, defendant Lawson has beer. the Acting Warden

of Greenville Correcuonal Center. He has acted and will act in such capacity as the agent,

servant, and employee of the defendant Commonwealth of Virginia in all actions he has

taken and will take in depnvauon of Bassette’s constirudonal rights. He is sued individually

and in his official capacity.

(6) At all umes relevant to this suit, defendant Terry has been the Attorney General

of Virginia. She has acted and will act in such capacity as the agent, servant, and employee

of the defendant Commonwealth of Virginia in all actions she has taken and will take in

deprivauon of Bassette’s constitutional mghts. She is sued individually and in her official

Capacity.

(7) At all times selevant to this suit, defendant Doe has been an ernloyee of the

Department of Corrections of Virginia. He has acted and will act in such capacity as the

agent, servant, and employee of the defendant Commonwealth of Virginia in all actions he

MAP 17 °93 10:53 HNP DIV?" TON P.is

individually and in his official capacity.

defendants, Murrey, Lavsar, Terry and Doe.

(9) On August 22, 1980, Bassette was convicted of capital murder in the Circuit

Court for Hennco County. Bassette’s punishment was fixed at death.

(10) On November 19, 1980, the Circuit Court for Henrico County accented the jury

verdict and sentence of death.

(11) In November of 1991, the Commonwealth of Virginia sought and obtained an

Order from the Circuit Court for Henrico County to execute the sentence imposed upon

Bassette.

(12) Bassette is scheduled to be executed on January 23, 1992.

(13) The Commonwealth of Virginia, and its agents Murray, Lawson, Terry and

Doe, have expressed their intendon to execute Bassette by electrocution pursuant to Virgina

Code § 53.1-233 (1991).

(14) The method of execution chosen by the defendants violates the prohibition

against cruel and unusual punishments found in the Eighth and Fourteenth Amendments to

the United States Consutuuon.

(15) Electrocution, heralded as providing an instantaneous and humane death when

invented in the late nineteenth century, provides neither.

93 10:85 we Pr’ toy P14

’

Rather, the subject experiences great pain and agony as electricity passes through his body.

raising his bodily fluids to the temperature of boiling water and searing third and fourth

decree burns into his flesh

1S torturous and barbanc.

(18) When a¢m:nistered properly lethal injection provides a significantly more

humane and less painful death than electrocution.

(19) Virginia’s electric chair is antiquated and obsolete and it is likely that the

electric chair will malfunction during the execution of Bassette. Moreover, the

Commonwealth of Virginia provides inadequate training and utilizes unqualified personnel in

the performance of executions. This increases the likelihood of human error and a lingering,

tortuous death.

(20) Virginia's electric chair is mutilating the bodies of the people it kills. This is

evidenced by at least two recent executions that were botched, the executions of Derrick

Peterson and Wilbert Lee Evans.

(21) Both Peterson and Evans endured brutal, painful deaths because of the inability

of Virginia's electric chair to provide an effective current of electricity to vital parts of their

bodies.

(22) That these executions were unnecessarily torturous is evidenced by the

observauons of eye witnesses. These witnesses recounted in gruesome detail bleeding that

stain of his own bodily fluids.

(23) After the botched Evans execuuion, the Commonwealth of Virginia attempted to

renair the chair, bu: to to avail, The second execution thereafter, that of Parersar «35 alia

doomed to be a macabre event. Perersan was not killed by the first colts af electrc:ry thar

the Commonwealth sent surging through his body. It took the Commonwealth over twelve

minutes to succeed in ending Peterson's life. Peterson assuredly endured unimaginable pain

during this period. During that entire time, witnesses observed him wheezing and moaning.

24) The electric chairs of other states, similar in design and age to Vire**:a's, also

have experienced repeated malfunctions, with attendant pmsoner suffemng and torture.

(25) The proposed use of Virginia's electric chair to carry out the execution of

Bassette’s sentence by the Commonwealth, Murray, Lawson, Terry and Doe, all acting under

color of state law and authority, has deprived and will deprive Bassette of rights secured to

him by the Constitution of the United States, including his Eighth Amendment nght of

freedom from crue! and unusual punishment.

(26) This Petition is based upon the accompanying Memorandum, Exhibits and

Affidavits.

WHEREFORE, Plaintiff Herbert R. Bassette, Jr. prays for the following relief from

this Court:

1) That this Court temporarily enjoin the execution of Bassette’s sentence by

electrocution until a full hearine can be held to determine that the use of Virgimia’s electme

MAR 17 ’93 11:00 HNP DIN’ 7 "ON P.16

wide Verses sd with pe ~ ote-

Consutution;

2) That after a full hearing on the ments, this Court declare that Virginia's electric

. 2 . 4 Ps ; Pa a | ~alarac ,

fails to Mrovit2 2m iINnstentas et ard kumane method of erection acd .:oiate 4

2: 5 2 2" insane

chair !

proscniptions of the eighth and fourteenth amendments to the United States Const:tut'or and

permanently enioin the Commonwealth, Murray, Lawson, Terry and Doe from fulfilling

Bassette’s sentence by use of Virginia's electric chair;

3) And for such other and further relief as this Court may deem appropriate under

the circumstances.

-Coudsel /

Patnicia M. Schwarzschild

HUNTON & WILLIAMS

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, Virginia 23219-4074

Robert J. Stoney

HUNTON & WILLIAMS

3050 Chain Bridge Road

Suite 600

P.O. Box 1147

Fairfax, Virginia 22030

(703) 352-22

Counsel for Herbert R. Bassette, IJr.

MAP 17 °S2 11:00 HNP DT" "ON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA Pike

n Terry nrvw9-}¢ e "n°?

HERBERT R. BASSETTE, JR.

Plaintiff,

Vv.

COMMONWEALTE OF VIPCINIA,

EDWARD W. MURRAY, Director,

Virginia Department ot Corrections

D.R. LAWSON, Acting Warden,

Greenville Correctional Center,

MARY SUE TERRY, Attorney General

of Virginia, and

JOHN DOE, Executioner,

Defendants.

ORDER

re ee ee ee ee ee ee ee eet ee

Civil Action No.

3:92CV21

Upon motion of the Plaintiff by Counsel and with the consent

of Defendants, Plaintiff’s action under 42 U.S.C. § 1983 shall be

and the same is hereby DISMISSED with prejudice.

By agreement of the parties,

costs.

each party will bear its own

Let the clerk send a copy of this Order to all counsel of

record.

Dated _/*/7> 72

oe ee te 2 eee oe ane Me i stay’ 4 a Oni eS

roe |

Mae

17 °S2 11:00 He Dive" "oN

crty OF SUFFOLK

5 Vin eh) Ps)

COMMONWEALTH OF Re

Public in the jurisdiction aforesaic.

ondersignes Notary Bd. —

e, ESqQu+re and stated under oath 43 f°

a wget | Hue 7, + ‘fe in cne

ane is J Samuel Glasscock and i res:sc*

1, My name ; —

Virginia r am an attorney licensed to P

5 é lk, .

City of Sufteo

law in tne Commonwealth of Virginié- ae aaa

1962 I was 4 delegate t° the Ge

2. Ia > ’

folk, Virg2n.4-

Virginia representang the City of Suffol ssisients

3, On Augys ’

é Frank J. Coppola. sit

Commonwealth of Virgsnia executed PP

: sp througn 2s

parate series of electrical current

s¢

apply:ng two rn

body, each lasting approximately $5 secon | ee

ing the second application ef <¢

: nage Soon, flames

ecg. ’

flow from Mr. Coppola's head and leg en

pects of the :¢9 elect?

: near the site oO.

Coppola's leg _—

erupted from bene

: ling could be heard that sounded like

preg IS nt was curne

and 9i22%2"99 continued until the curre

“nis flame 33

off.

EXHIBIT

amounts to fil

the entire death

Fe Although I was in an

witnesses secarated from the death chamber

a i

- _- ~an-e

SMO io e<cs

_—-

><«-+

flesh.

8. Snostly after Mr. Coppola's

the current was turned off. WItAiA Minutes,

pronounced Mr. Coppola dead.

9. pd

@o not believe that any

csrarber with

isolated

sO0th with

S™oky “aze.

Cs.:@f

by glass and a wal)

leg caught

a medical

representative of

news media was present at the time of the execution.

AND FURTHER THIS AFFIANT SAYETH

NOT.

Sworn to and subscribed before me this

2nd day of January, 1992.

My commission expires Aug. 21, 1992.

on f€:2r¢e,

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.